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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> London Borough of Havering & Ors v Persons Unknown & Ors [2021] EWHC 2648 (QB) (04 October 2021) URL: https://www.bailii.org/ew/cases/EWHC/QB/2021/2648.html Cite as: [2021] EWHC 2648 (QB), [2021] WLR(D) 520 |
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QB-2019-000616 QB-2019-002737 QB-2019-002738 QB-2020-002112 |
QUEEN'S BENCH DIVISION
Strand,  London, WC2A 2LL |
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B e f o r e :
____________________
| (6) London Borough of Havering (26) Nuneaton & Bedworth Borough Council & Warwickshire County Council(28) Rochdale Metropolitan Borough Council(33) Test Valley Borough Council(34) Thurrock Council |
Claimants |
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| - and - |
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| (1) Persons Unknown (2) Other named Defendants |
Defendants |
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| - and - |
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| (1) London Gypsies and Travellers (2) Friends, Families and Travellers (3) Derbyshire Gypsy Liaison Group |
Interveners |
____________________
LB Barking & Dagenham Legal Services) for the Claimants
The Defendants did not attend and were not represented
The Interveners did not attend and were not represented
Hearing dates: 28-30 July 2021
____________________
VERSION OF APPROVED JUDGMENT
Crown Copyright ©
The Honourable Mr Justice Nicklin :
Havering, Nuneaton & Bedworth BC and Warwickshire CC, Rochdale MBC, and Thurrock Council, the Court would hold a hearing to decide whether the interim injunction that each local authority had been granted should be discharged on the grounds that the failure to progress the claims to a final hearing following the grant of an interim injunction was an abuse of process. Each local authority was given an opportunity to file evidence relevant to the abuse of process issue and a hearing was fixed. The claim brought by Test Valley BC was listed to be heard at the same hearing, but this was simply for directions to be given in that claim.
The progress of the respective claims
Persons Unknown" in the LB Bromley case ([2019] EWHC 1675 (QB)). The Claim brought by LB Bromley had been solely against "Persons Unknown" and not any named defendants.
(1) LB Havering
Persons Unknown", without any description. Not only did the Claim Form fail properly to describe the "Persons Unknown" it also did not comply with CPR Part 8.2A(1) and the requirements of Practice Direction 8A §§20.4-20.6 as to proper identification of the Persons Unknown Defendants (see May Judgment [49]-[52]). The Claim Form contained the following "details of claim":
"1. The Claimant seeks an interim and final injunction pursuant to s.222 of the Local Government Act 1972, and/or s.187B of the Town & Country Planning Act 1990, and/or s.1 of the Anti-Social Behaviour, Crime and Policing Act 2014, with a power of arrest attached to the appropriate provisions of the Court order.
2. The Claimant owns a number of public open spaces, car parks and other sites within its
3. The
4. The encampments are having a detrimental impact on the
5. For the reasons set out in the witness statements, it is necessary and expedient for the promotion and protection of the interests of the inhabitants of
6. It is necessary to bring these proceedings against
Havering was granted, without notice, the following orders relating to service of the Claim Form and other documents ("the Service Order"):
"2. Pursuant to CPR 6.14, 6.15, 6.26 and 6.27 the Claimant has permission to serve the named defendants between 6.30am and 8pm during the week and 7am and 4pm on a Saturday. Copies (as opposed to originals) of the Claim Form and Applications served on a Saturday will be deemed served on the second working day after the date of service and copies (as opposed to originals) of claim forms and applications served after 4pm on a working day shall be deemed to be served on the second working day after the date of service.
3. In the event that the Claimant is unable to
4. The Claimant shall be permitted pursuant to CPR 6.27 to serve any evidence in support of the Claim and application for an interim injunction by USB memory stick and/or by providing a digital link to the evidence contained on the Claimants website and shall provide any Defendant that requests copies of the same within 2 working days of receipt of such request, and shall have a copy of all evidence relied upon in these proceedings available for inspection at the
5. The claim form and application shall be deemed served on
6. The Defendants shall acknowledge service of the claim form 21 days after the date of deemed service and file any written evidence in support of the Defence by the same date."
Havering's order is also defective as it too does not state the date on which the Claim Form was deemed to be served on the 106th Defendant "Persons Unknown". LB Havering has not yet taken any steps to attempt to regularise this position.
Havering sent a letter to each of the named Defendants on 12 August 2019:
"…
The Claimant also made an application for an on-notice interim injunction, and that application will be heard on 10 September 2019 at 10.30am at the High Court of Justice, Royal Courts of Justice, Strand,
If you wish to partake in these proceedings, you must file and serve an acknowledgement of service and any evidence within 21 days of service of this letter.
1. Sealed Service Order/Notice of Hearing … dated 31.7.19
2. Sealed Copy of the Part 8 Claim Form, Particulars of Claim, Draft Order and Schedule.
3. Application for Interim Injunction, Draft Order
4. Application for Alternative Service, Draft Order
5. USB Stick of evidence including:
a. Witness Statement Bundle
b. Exhibits Bundle
c. Police Exhibits Bundle
Copies of the evidence can also be obtained at :
-
- https://www.
If you require a hard copy of any of the above, or if you have any questions regarding these proceedings, please write to us at oneSource Legal Services, 1000 Dockside Road,
Havering's evidence in support of the Part 8 Claim – provided on the memory stick or via the referenced link to LB Havering's website – when printed out occupies 9 ring binders containing some 3,728 pages. In total, there are 48 witness statements and just short of 3,500 pages of exhibited material. This is a daunting amount of material for anyone to have to consider. I will return to this issue later in the judgment (see [127]-[136] below).
Havering was granted an interim injunction on 11 September 2019. In the Court's order, the 106th Defendants were described as "Persons Unknown forming unauthorised encampments within the London Borough of Havering". No application was (or has been) made to amend the description of the 106th Defendant in the Claim Form. The injunction was expressly granted "pending the final injunction hearing". The material terms of the injunction order were as follows:
"The First to Fifth Defendants, the Seventh Defendant, Tenth Defendant, Twelfth Defendant, Fifteenth to the Twenty-Third Defendant, Twenty Fifth to Twenty-Eighth Defendants, Thirty-First to the Thirty-Third Defendants, Thirty-Fifth Defendant, Thirty-Seventh to the Thirty-Eighth Defendants, Forty-First and Forty-Second Defendants, Forty-Fifth Defendant, Forty-Eighth to the Sixtieth Defendants, Sixty-Second Defendant, Sixty-Fourth to Seventy-Third Defendants, Seventy-Sixth Defendant, Seventy-Eighth to Seventy-Ninth Defendants, Eighty-First to the Eighty-Third Defendants, Eighty-Sixth to the Ninety-Seventh Defendants, Ninety-Ninth to the One-Hundred-Fifth Defendants (hereinafter referred to as the 'Named Defendants') are forbidden from:
1. Setting-up an encampment on the Land within the
2. Setting-up an encampment on the Land within the
3. Entering and/or occupying any part of the Land for residential purposes (temporary or otherwise) including the occupation of caravans/mobile homes, storage of
4. Bringing on to the Land or stationing on the Land any caravans/mobile homes other than when driving through the
5. Deposit or cause to be deposited, controlled waste in or on the Land unless a waste management license (sic) or environmental permit is in force and the deposit is in accordance with the license (sic) or permit.
The One-Hundred-Sixth Defendants are forbidden from:
6. Setting-up an encampment on the Land identified on the attached map and list of sites without written permission from the local planning authority, or, planning permission granted by the Secretary of State or in accordance with statutory permitted development rights.
7. From (sic) entering and/or occupying any part of the Land identified on the attached map and list of sites for residential purposes (temporary or otherwise) including the occupation of caravans/mobile homes, storage of
8. From (sic) bringing onto the Land or stationing on the Land any caravans/mobile homes other than when driving through the
9. Deposit (sic) or cause to be deposited, controlled waste in or on the Land unless a waste management license (sic) or environmental permit is in force and the deposit is in accordance with the license (sic) or permit.
10. There shall be a power of arrest attached to prohibitions 1-9 of this Order.
The Land in this order means:
11. For the Named Defendants, all land within the
12. For the One-Hundred-Sixth Defendants (
Persons Unknown".
London Borough of Havering. For Persons Unknown, the restrictions imposed by Paragraphs 6 to 9 applied to 279 designated sites shown on the map and listed in Schedule 3. The scale of the map meant it was useful only as a rough guide with Schedule 3 providing a list of sites that were covered by the injunction.
Persons Unknown", whatever the terms of the Claim Form, the interim injunction purported to bind newcomers: i.e. anyone who formed an unauthorised encampment within LB Havering. The injunction order was posted at each of the 279 sites. The interim injunction order also contained a power of arrest directed at both the named Defendants and "Persons Unknown". No application for a power of arrest was included in the Claim Form or the Application Notice (contrary to CPR 65.9 – see [79]-[80] May Judgment) and I can find no reference to the power of arrest in the supporting evidence. I discharged this power of arrest in relation to "Persons Unknown" by an order made on 24 May 2021. LB Havering has taken no steps to attempt to regularise the position as regards the named Defendants.
London Borough of Barking and Dagenham. He acted for his own local authority but also for LB Redbridge, LB Havering, and Thurrock Council. He has filed a witness statement, dated 19 July 2021, explaining the steps taken by LB Havering and Thurrock following the grant of an interim injunction to each local authority. On behalf of LB Havering, Mandeep Mehat has also filed a witness statement, dated 19 July 2021. Mr Rulewski had also acted for LB Barking and Dagenham (Cohort Claim 1) and LB Redbridge (Cohort Claim 11) who had obtained Traveller Injunctions, by way of final order, on 30 October 2017 and 12 November 2018 respectively. In both claims an interim injunction had been granted and the time taken to progress the claim to a final hearing was 7 months and 5 months respectively. Across the Cohort of 38 claims, 17 claims were progressed to a final order. The average time taken between interim and final orders was just short of 4 months.
Havering was to … aim to go from interim to final within anywhere between 7 months and 1 year". It is not clear to me – and Mr Rulewski does not explain – why such a lengthy period was necessary or thought appropriate. Prior to the interim injunction application, no defendant had filed an acknowledgement of service (or any evidence). Given the requirements to serve and file the evidence in support of the claim at the same time as issuing the Part 8 Claim Form (CPR 8.5(1)-(2)), a failure to progress the claim expeditiously in these circumstances requires some explanation.
Havering "were being worked on after the grant of the interim injunction". He added:
"Thurrock and
Havering did not, strictly, intervene in LB Bromley, but Mr Rulewski has fairly pointed out that there was substantial commonality of issues between the cases of LB Havering and Thurrock Council.
Havering, Ms Mehat said that she "regularly kept in contact [with Mr Rulewski] to progress outstanding matters in respect of the preparation of the case for final hearing". As an example, she stated that she sought to progress obtaining further evidence from the police in relation to outstanding checks with the police national computer. Ms Mehat exhibited a "billing report" from September 2019 to July 2021 showing the time spent on the case. Whilst this document appears to show that there was activity on the case throughout the life of the claim, apart from the specific matters which I identify, it is impossible to work out what was being done.
Havering's Interim Enforcement Group Manager, sent an email to Ms Mehat:
"Can you please provide an update around the full injunction hearing? I am aware the Appeal Court allowed the challenge against LB Bromley – are there any implications for our application from the 'enshrined freedom' of movement aspect and provision of 'adequate safe' sites?...
9 am tomorrow (5th) CP Review for which I will need an indication on estimated Legal costs for the remainder of this financial year to revise our forecast accordingly."
"I have recently received the full judgment for the Bromley case which I have attached for your information. The guidance is at the end and although the judgement is generally positive for the Council, there does appear to be a focus on whether local authorities have made attempts to provide alternative provision/transit sites for travellers before taking injunctive proceedings. I think we have done enough already but I am reviewing whether we need to add in any further evidence of this ahead of the final hearing.
In the meantime Adam has been liaising with
Apologies for the delay on costs – I am just sorting out the correct costs for the process server as there were some previous issues. I will aim to have the costs estimate ready by this evening so that you have this ready for your meeting tomorrow."
Havering.
Havering asking it to reconsider the injunction it had obtained and any the continuation of further proceedings in light of the Court of Appeal's decision in LB Bromley. Further follow up emails were sent on 3 April, 15 September and 28 September 2020. LB Havering did not respond to the letter or any of the chasing emails.
"Can you let me know which days you will be in … to complete the prep for the above. I am conscious of time and Noreen is also off on leave at the end of this month for about 2 and a half weeks."
"I can come in next Tuesday if that works? I am [working from home] this week as picked up some bug from these kids parties… On the mend now though so will be all good for next week."
"Tuesday is fine – only come in if you are feeling better. I think we need to plan ahead in case offices/courts need to close given the issue of the Corona
I did receive a letter from the charity/NGO representing the travellers to reconsider applying for final injunction given the Bromley decision… I will dig this out if you are still in tomorrow…"
Havering on 5 October 2020, from the Community Legal Partnership ("CLP"), representing the First Intervener. CLP referred to LB Havering's failure to respond to the letter of 9 March 2020 from the First Intervener (or to any of the chasing emails). CLP noted the Court of Appeal's decision in LB Bromley and also drew LB Havering's attention to the decision of the Court of Appeal in Canada Goose UK Retail Ltd -v- Persons Unknown [2020] 1 WLR 2802. CLP asked for confirmation that, in light of those decisions, LB Havering would be withdrawing its claim. CLP also referred to a decision in LB Enfield -v- Persons Unknown [2020] EWHC 2717 (QB), another of the Cohort Claims, on 2 October 2020.
very busy dealing with COVID-19 related matters". She did not engage with any of the points raised by CLP (or the First Intervener) and stated, simply, that LB Havering would be "listing this matter for a final hearing to apply for a final Borough Wide Injunction".
Havering, the position appears to be as follows:
i) After obtaining the interim injunction on 11 September 2019, LB Havering failed to progress the matter to a final hearing or to seek any directions from the Court to list the claim for a final hearing at any stage before the Court finally made the Order on 16 October 2020, gathering the claim as one of the Cohort Claims.
ii) LB Havering (and Thurrock Council) unilaterally decided to await the outcome of the LB Bromley case in the Court of Appeal. Had it been asked, the Court may well have agreed that this was a sensible course, but had the local authorities sought directions postponing the final hearing until determination of the Court of Appeal, the Court would have fixed a timetable to ensure that the case came back before the Court promptly after the Court of Appeal's decision was available.
iii) Although Ms Mehat appears to have been conscious of the need to press on with the litigation, and in early February 2020 she appeared to be working to a timetable to bring the claim to a final hearing before Easter 2020, still no steps were taken to bring the matter back to Court.
iv) Having (unilaterally) decided to delay progressing their claims to a final hearing to await the Court of Appeal's decision in LB Bromley, as I noted in the May Judgment ([99]), the failure promptly to progress the matter to a final hearing, or to seek any directions from the Court to get the claim to a final hearing, after the LB Bromley decision was even more serious. When it was handed down on 21 January 2020, the Court of Appeal's decision in LB Bromley raised (at least) serious questions as to the terms of the interim injunction that LB Havering had been granted. As against the named Defendants, LB Havering had obtained a borough-wide interim injunction. Injunctions of such width had been criticised as "inherently problematic" by the Court of Appeal in LB Bromley ([105]). The later decision of the Court of Appeal in Canada Goose raised further questions about whether final injunctions against "Persons Unknown" were available and/or effective. On the evidence presented by LB Havering, it appears to have done little, if anything, to progress the matter to a final hearing during 2020. If, as I have been told, work continued to be done on the case, it has produced nothing representing the fruits of its industry and certainly nothing which could justify a delay of some 10 months. It was not until the Court made the directions order of 16 October 2020 that any directions were made in the claim.
v) Separately, but additionally, LB Havering ignored and failed to engage with the First Intervener's correspondence.
Havering (and Thurrock Council) on the grounds that both he and Ms Bolton, Counsel instructed by the local authorities, had been unwell in the early part of 2020. Mr Rulewski has also relied upon the disruption caused by the pandemic and the particular strains that it had placed on local authorities. He suggested that the pandemic caused a "total cessation" of court hearings for a period. Criminal prosecutions brought by local authorities, he stated, were not restarted until December 2020. I accept that there were serious issues facing local authorities, but the impact of the pandemic (and periods of illness of personnel) cannot explain the total failure of LB Havering to get the matter back before the Court during 2020.
i) On 15 April 2020, Rugby BC made an application to renew a power of arrest it had been granted in connection with its Traveller Injunction.
ii) On 8 June 2020, Harlow DC and Essex CC issued an Application Notice seeking to "extend" the injunction it had been granted by final order.
iii) On 18 June 2020, Test Valley BC issued a Claim Form (with substantial supporting evidence), issued an application for an interim injunction, and obtained an order for alternative service of its claim.
iv) On 23 June 2020, Canterbury CC issued an application notice seeking to "extend" the injunction it had been granted by final order.
v) On 10 July 2020, Harlow DC and Essex CC appeared before Tipples J at the hearing of their application to "extend" the final injunction they had been granted. Following the Judge's questions about the jurisdiction to "extend" a final order, the local authorities withdrew their application.
vi) On 20 July 2020, a further review hearing took place in the claim brought by Wolverhampton CC, leading to a continuation of its Traveller Injunction.
vii) On 28 July 2020, after a hearing, Test Valley BC was granted an interim Traveller Injunction.
viii) On 30 July 2020, Canterbury CC attended a hearing at which its injunction was extended pending a determination of its application to extend being heard in the Autumn.
ix) On 22 September 2020, LB Enfield issued an application notice seeking to amend its claim and "extend" its final injunction.
(2) Nuneaton and Bedworth BC & Warwickshire CC
Persons Unknown forming unauthorised encampments within the Borough of Nuneaton and Bedworth". As against the "Persons Unknown" defendants, the Claim Form failed to comply with CPR Part 8.2A(1) and the requirements of Practice Direction 8A §§20.4-20.6 (see May Judgment [49]-[52])). The "details of claim" given in the Claim Form were substantially in the same terms as that in the claim by LB Havering (see [5] above). The material differences were that Nuneaton and Bedworth BC & Warwickshire CC did not base any part of their claim on s.1 Anti-Social Behaviour, Crime and Policing Act 2014 and did not seek to restrain alleged anti-social behaviour.
Havering (see [6] above) ("the Service Order"). The same defect regarding lack of deemed date of service of the Claim Form on "Persons Unknown" also applies. Nuneaton and Bedworth BC & Warwickshire CC have not yet taken any steps to attempt to regularise this position.
Persons Unknown pursuant to the Service Order. Nuneaton and Bedworth BC & Warwickshire CC's evidence in support of the Part 8 Claim, if printed out, occupies 6 ring binders containing some 1,908 pages. The electronic file is 1.25 gigabytes. In total, there are 8 witness statements and around 1,500 pages of exhibited material. I will return to this issue later in the judgment (see [127]-[136] below).
Havering (see [10] above, even with the same typographical/spelling errors).
Persons Unknown".
Havering. The named Defendants (with some exceptions) were subjected to a Borough-wide prohibition on encampments and fly-tipping. For Persons Unknown, the prohibitions applied to 141 designated sites shown on the map and listed in a schedule and purported to bind newcomers: i.e. anyone who formed an unauthorised encampment on the restricted sites. The interim injunction order also contained a power of arrest directed at both the named Defendants and "Persons Unknown" expressed to have been made both under s.27 Police and Justice Act 2006 and s.4 Anti-Social Behaviour Crime and Policing Act 2004. No application for a power of arrest was included in the Claim Form or the Application Notice (contrary to CPR 65.9 – see [79]-[80] May Judgment) and I can find no reference to the power of arrest in the supporting evidence. Nuneaton and Bedworth BC & Warwickshire CC have taken no steps to attempt to regularise this position. I discharged this power of arrest in relation to "Persons Unknown" by an order made on 24 May 2021.
Havering (see [14] above).
very aware of the need to progress the claim to a final hearing" and had intended to do so in October 2020. He suggests that the failure to progress the claim to a conclusion was as a result of the Court assembling the claim as part of the Cohort. After the interim injunction had been granted Mr Richardson stated that "it was agreed" that it was necessary for a period to be allowed for representations to come forward form the traveller community either formally in the proceedings or raised directly with the Council.
"I have spoken with William (who has also checked with Caroline) to confirm the next stages –
Their
If we'
The reference to "William" is to William Rose, the Council's external solicitor at Sharpe Pritchard and the reference to "Caroline" is to Ms Bolton, Counsel.
"During this period we continued to liaise with Dawn Dawson, Director of Housing, Communities and Economic Development and Rob Watson the then Private Sector Housing Manager with regards to collating the further evidence for the final order application and the resources and finances that would be required to obtain, serve and implement the final order."
various emails demonstrating this activity.
i) On 21 January 2020, Ms Dawson emailed Mr Richardson with the subject "Final Injunction":
"Rob has mentioned that we are looking to go for the final traveller injunction in March this year.
Do you know if the cost is being covered and where from? Also, can you give me any indication of what resources you'll need from Rob Watson's team? I need to know as Rob will be leaving at the beginning of April and he has a project to complete before he goes."
ii) Mr Richardson replied on 22 January 2020:
"Possibly!
We are awaiting the decision of the Court of Appeal on Bromley LBC's appeal against a refusal to grant a similar injunction. That may determine whether we proceed to a final application or not (at this stage). The hearing was before Christmas, but the decision was reserved and hasn't yet been published.
I did meet with William Rose in December and he mentioned that Caroline was keen to get an application in. We agreed, however, that it would be sensible to wait the CA's decision.
In terms of costs, we would have similar costs to last time, especially in terms of service. That means an application to issue and seek substituted service; use of process servers to serve the papers and then service of the proceedings followed by (if successful) service of the final order. All
"As you know I was involved in the Bromley case for the Fourth Intervenor. The following needs to be appreciated:
1. Marc Willers QC for the
2. The Court of Appeal made clear that in the Harlow type cases an injunction was justified. This was because these injunctions targeted behaviour not simply the fact that travellers were stopping up. I have ensured all my clients injunctions follow the approach we took in Harlow.
3. We have been making some changes to the injunctions since the First Bromley hearing, just as a precaution, which given the Court of Appeal's comments in the Bromley case, I suggest Nuneaton should also adopt (this does not require a
4. We will also need an updated statement explaining what has happened since the injunction was granted. We will also need up-to-date details on our general need figures for permanent sites and how we are doing with meeting that need. If I can have these details I will review ASAP. I would also want a clear table explaining justification for each site covered by the order against
5. Finally, we will need to make an exception in the injunction order for where the travellers have permitted development rights. This does not harm the injunction as permitted development rights can only be exercised with the consent of the landowner, so in reality it makes no difference to the injunction. Further, it only applies in relation to travellers encampments in
Please let me know if you wish me to prepare the letter to [NFGLG], ideally it would be better to write to her once we have a tolerance/negotiated stopping policy in place (even if it's only informal at present-it will need to be in writing before the final hearing, as the court will be considering matters afresh, but for now an informal approach will be fine)."
"Caroline's response to the letter from the NFGLG.
Do we have a policy on temporary stopping places? Can we adopt [Warwickshire CC's] for the sake of expediency?
Rob, can Carol look at preparing an update statement as to what has happened since the making of the Order? I am aware of some incursions, but that the police dealt with them under the order and secured the removal of unauthorised encampments within 24 hours. [Warwickshire CC] have had problems…
The last piece in this is the Local Plan provision. We need to ensure that we can demonstrate a positive direction of travel
"… Timescales are asap, as Caroline would like this in place so that it can be referred to in the reply.
We raised the issue at Informal cabinet yesterday and have the green light to work up a report for submission to Cabinet seeking authority to proceed with the application (this will be on pink). We indicated that we are looking for an order in the next 3 to 6 months. We obviously need to get our ducks in a row, especially the bits raised by Caroline. It might make sense for the report to Cabinet to include approval of the policy at the same time (for completeness). Craig is looking at the funding issue (I said we spent about £100K last time and we should assume the same again given the costs of service and fees)…"
"1. Introduction
It is now about a year since the Council obtained an interim injunction related to the traveller incursions experienced by the Council between 2016 and 2018. The order granted by the High Court was interim, pending an application for a final order, but it remains in effect until an application is made to have it removed.
2. Issues
Officers have been keeping the operation of the injunction under review and the general effect has been positive insofar as the police have demonstrated a willingness to enforce the injunction where applicable. This has reduced the number of incursions throughout 2019 (although not entirely).
Because of a legal case that was being considered by the Court of Appeal, no action has been taken to proceed with a final application. This case, involving the
The Court laid down some particular requirements when seeking a
Despite this, the Council has now received a letter (see Appendix A) from the National Federation of Gypsy Liaison Groups seeking withdrawal of the Injunction and confirmation that the Council will not seek its renewal (which may refer to an application for Final Order).
3. Proposals
The cost of obtaining the Interim injunction was in the region of £100,000 and it is anticipated that similar costs will need to be incurred in the application for a Final order. Much of the cost related to the cost of service of documents which, with a mobile community, is always problematic.
Officers have sought advice from Caroline Bolton on the merits of an application for a Final order, anticipating that the Federation may well instruct Counsel to oppose it.
The advice has been requested before this meeting and will be reported orally. However, the initial
4. Conclusion
This will be subject to the advice of Counsel
5. Recommendation
(a) Subject to the advice of Counsel, a response be sent to the NFGLG advising them that the Council intends to pursue an application for a Final order; and
(b) Preparations be made for the application."
persons forming unauthorised encampments were threatened with arrest by the police on 3 May 2019 (5 caravans on Stanley Road), 9 May 2019 (2 caravans at Dunns Close), 6 July 2019 (2 caravans at The Dingle), 23 September 2019 (1 caravan at Beverley Avenue), and 20 December 2019 (1 caravan at Dunns Close). On none of these occasions was any damage caused or any clean-up costs incurred by the local authority. There is no mention in Ms Ingleston's draft statement of any consideration of government guidance on use of enforcement powers by local authorities (see [16] in the May Judgment) or of "negotiated stopping". This may reflect the reality that, when a local authority holds an interim injunction with a power of arrest prohibiting unauthorised encampment on land, the bargaining position in any "negotiation" might be regarded as somewhat one-sided.
i) After obtaining the interim injunction on 19 March 2019, Nuneaton & Bedworth BC and Warwickshire CC failed to progress the matter to a final hearing or to seek any directions from the Court to list the claim for a final hearing at any stage before the Court finally made the Order on 16 October 2020, gathering the claim as one of the Cohort Claims.
ii) A significant part of the failure to progress the claim to a final hearing was Nuneaton & Bedworth BC and Warwickshire CC's decision unilaterally to await the outcome of the LB Bromley case in the Court of Appeal. Had it been asked, the Court may well have agreed that this was a sensible course, but had the local authorities sought directions postponing the final hearing until determination of the Court of Appeal, the Court would have fixed a timetable to ensure that the case came back before the Court promptly after the Court of Appeal's decision was available.
iii) The delay, however, is not solely explicable by the decision to await the decision in LB Bromley. Nuneaton & Bedworth BC and Warwickshire CC had obtained their interim injunction on 19 March 2019. The first instance decision in LB Bromley was given on 17 May 2019 and the appeal was heard in December 2019. It appears, however, that Nuneaton & Bedworth BC and Warwickshire CC only took the decision to await the decision of the Court of Appeal before progressing the claim to a final hearing in December 2019 (see 22 January 2020 email – [45(ii)] above).
iv) If Nuneaton & Bedworth BC and Warwickshire CC had progressed their claim properly, then, based on the average in the Cohort, the final hearing would have been heard by July 2019. Without having obtained any directions from the Court, it appears, from the email of 25 April 2019 (see [43] above), that Nuneaton & Bedworth BC and Warwickshire CC adopted a more leisurely timeframe to progress their claim, aiming for a final hearing in November/December 2019. Given the need to serve evidence in support of a Part 8 Claim at the time of issue, there is scant evidence of what they were doing during this period beyond "monitoring the situation". This appears to betray a fundamental misconception about what an interim injunction is for (see [46] below).
v) The emails exchanged between Mr Richardson and Ms Dawson on 21/22 January 2020 suggest that resource implications were being considered, but it was at least recognised between them that there was some urgency to get the matter to a final hearing, albeit this was not reflected in the actions ultimately taken. It is, of course, quite legitimate for a local authority to consider carefully whether it should continue to commit resources to the pursuit of litigation. But it is not open to a local authority, that has commenced proceedings and obtained an interim injunction, to delay the proper prosecution of a claim whilst it considers its position. Mr Richardson's report to the "Informal Cabinet", on 4 March 2020, failed to identify that, having commenced proceedings, and obtained an interim injunction, it was the Council's obligation to press the claim towards to a final hearing without delay.
vi) The exchanges in early March demonstrate that insufficient urgency was being adopted by the Council. The statement in Mr Richardson's email of 5 March 2020 was that authority had been given to "work up a report" for submission to the full Cabinet seeking "authority to proceed with the application" with a timeframe of "3 to 6 months". Thereafter, following the conference with Counsel in late April, no steps appear to have been taken either to advance the claim to a final hearing or even to seek the Court's directions. Mr Richardson's evidence as to what Nuneaton & Bedworth BC and Warwickshire CC were doing in the six months following the conference is vague and, beyond Ms Ingleston's draft witness statement, the local authorities have identified in their evidence nothing of substance that was achieved in this period.
vii) Even when it was finally arranged, the further conference with Counsel, fixed for 24 October 2020, was with a view to progressing the claim.
viii) Having (unilaterally) decided to delay progressing their claims to a final hearing to await the Court of Appeal's decision in LB Bromley, Nuneaton & Bedworth BC and Warwickshire CC are open to the same criticism as LB Havering (see [30(iv)] above) for having failed properly to prosecute the claim thereafter. Given Mr Richardson's statement that Nuneaton and Bedworth BC were "very aware" of the need to progress the claim to a final hearing, it is striking how little was done to do so in the 18 months since the interim injunction was granted to his local authority. I reject Mr Richardson's somewhat opportunistic suggestion that it was the Order of 16 October 2020 gathering the Cohort Claims that has delayed the progress of the claim.
(3) Rochdale MBC
Persons Unknown (being members of the travelling community who have unlawfully encamped within the Borough of Rochdale". As against the "Persons Unknown" defendants, the Claim Form failed to comply with CPR Part 8.2A(1) and the requirements of Practice Direction 8A §§20.4-20.6 (see May Judgment [49]-[52]). The "details of claim" given in the Claim Form were substantially in the same terms as that in the claim by LB Havering (see [5] above), although like Nuneaton and Bedworth BC & Warwickshire CC, Rochdale MBC did not base any part of their claim on s.1 Anti-Social Behaviour, Crime and Policing Act 2014.
Persons Unknown" is based solely on past conduct of the identified members of the travelling community. As Ms Bolton, on behalf of Rochdale MBC, accepted at the hearing, this definition does not embrace "newcomers" as they have become known in the lexicon of Traveller Injunctions.
Havering (see [6] above) ("the Service Order"). The same defect regarding lack of deemed date of service of the Claim Form on "Persons Unknown" also applies. Rochdale MBC has not yet taken any steps to attempt to regularise this position.
Persons Unknown pursuant to the Service Order.
Persons Unknown" on 19 February 2018. A comparison of the list of named Defendants attached to the injunction order and the list of named Defendants in the Claim Form suggests that the some of the named Defendants were removed (and the names of two Defendants are struck out in the list of named Defendants attached to the injunction order). The status of the claim against these removed named Defendants is unclear. The injunction was expressly granted "until further order" and the material terms of the injunction order were substantially in the same terms as that granted to LB Havering (see [10] above, again with the same typographical/spelling errors). All sites and Defendants were served with the interim injunction by 25 March 2018.
Borough-wide prohibition on encampments and fly-tipping. For Persons Unknown, the prohibitions applied to 325 designated sites shown on the map and listed in a schedule. The interim injunction contained a power of arrest as against the named Defendants, but not as against "Persons Unknown". No application for a power of arrest was included in the Claim Form or the Application Notice (contrary to CPR 65.9 – see [79]-[80] May Judgment) and the jurisdiction under which this power of arrest was attached was not stated in the Order, the Application Notice, the Claim Form or, it appears, in any of the evidence in support. Rochdale MBC has taken no steps to attempt to regularise this position.
Havering (see [14] above).
very aware of the need to progress the claim to a final hearing" and that "this matter would have been listed for final hearing much earlier but for the Bromley case and the current cases before the court". Like Mr Richardson for Nuneaton and Bedworth BC & Warwickshire CC, Mr Graham seeks to suggest that one of the reasons that the claim has not progressed to a final hearing is the gathering of the Cohort Claims.
London Gypsies and Travellers were granted permission to intervene and the final hearing of the claim was adjourned and finally came back before the Court on 15 May 2019.
very different from the claim brought by Rochdale MBC.
"… we arranged a conference with our Counsel and our Counsel came up from
view of the challenges faced during lockdown, it was for the Court to make those decisions and not Mr Graham.
Borough-wide interim injunction (with a power of arrest) against over 80 named Defendants. The only mitigating factor in Rochdale's case is that the terms of the interim injunction directed at Persons Unknown it had been granted, on proper construction, did not apply to newcomers (although I am sceptical whether this point would have been fully appreciated).
(4) Thurrock Council
Havering's claim. It named 107 individual defendants and "Persons Unknown", without any description. Not only did the Claim Form fail properly to describe the "Persons Unknown" it also did not comply with CPR Part 8.2A(1) and the requirements of Practice Direction 8A §§20.4-20.6 as to proper identification of the Persons Unknown Defendants (see May Judgment [49]-[52]). The "details of claim" given in the Claim Form were identical to those given in the claim by LB Havering (see [5] above).
Havering (see [6] above) ("the Service Order"). The same defect regarding lack of deemed date of service of the Claim Form on "Persons Unknown" also applies. Thurrock Council has not yet taken any steps to attempt to regularise this position.
Havering (see [8] above). Thurrock Council's evidence in support of the Part 8 Claim, when printed out, occupies 6 ring binders containing some 2,164 pages. In total, there are 24 witness statements and around 1,900 pages of exhibited material. I will return to this issue later in the judgment (see [127]-[136] below).
"… I would be grateful if you could confirm whether you have been instructed by any of the named defendants, or whether you have sought to intervene, for example, having become aware of the proceedings or by other means and, if so, confirmation of that.
At this stage, we intend to proceed. We have read and are fully aware of the decision in the Bromley proceedings. As this application concerns named, as well as unnamed individuals, we are distinguished from the Bromley decision which concerned only
Havering (see [10] above, again with the same typographical/spelling errors).
Borough-wide prohibition on encampments and fly-tipping. For Persons Unknown, the prohibitions applied to 163 designated sites shown on the map and listed in a schedule. The injunction order incorrectly stated that the injunction order applied to 279 sites. This error appears to have been as a result of copying and pasting the text from the LB Havering Injunction and not properly checking it. The interim injunction order also contained a power of arrest directed at both the named Defendants and "Persons Unknown". No application for a power of arrest was included in the Claim Form or the Application Notice (contrary to CPR 65.9 – see [79]-[80] May Judgment) and I can find no reference to the power of arrest in the supporting evidence. I discharged this power of arrest in relation to "Persons Unknown" by an order made on 24 May 2021.
Havering (see [14] above).
i) On 24 February 2020, Victoria Gilmore, the Policy and Projects Officer of the Second Intervener emailed Thurrock Council. The email was sent after the Court of Appeal decision in LB Bromley and raised various points. The email concluded:
"In light of this judgment we would ask you to confirm that you will urgently reconsider the interim injunction you have in place. Indeed, we feel that this interim injunction should now be withdrawn. Please also confirm that you will not be seeking a permanent injunction."
ii) Mr Rulewski responded to Ms Gilmore on 3 March 2021. He stated that Thurrock Council's injunction was "markedly different from Bromley" and that "the concerns raised by the Court of Appeal are not a feature in our injunction". He confirmed that Thurrock would not be withdrawing its interim injunction and "we will seek a permanent injunction, and details of the date of this hearing will be published on the Council's website".
iii) On 12 March 2020, Donna Burnett, Thurrock Council's Anti-Social Behaviour Officer, emailed Mr Rulewski to request a date in the following week for a meeting to discuss and review the evidence for the claim. The evidence does not indicate whether any meeting took place and whether progress was made with the evidence for the claim. No meeting is recorded in Mr Rulewski's time recording until the first week of May 2020.
iv) On 29 April 2020, following the coronavirus pandemic, Ms Gilmore sent a further email to Mr Rulewski. She referred to guidance issued to local authorities by central government and advice issued by the College of Policing both of which had a direct bearing on the appropriateness of using enforcement powers against Gypsies and Travellers during the pandemic. Ms Gilmore sought confirmation of the status of the interim injunction and whether it was still being enforced by Thurrock Council. Mr Rulewski did not respond to that email, but he did forward it internally in Thurrock Council, asking "are we able to confirm if there are any pre-existing but currently empty holiday/caravan parks in the borough which would be available?". Phil Carver, Strategic Lead of Enforcement, Environment, Highways and Counter Fraud, responded the same day to Mr Rulewski's email: "There are no pre-existing, currently empty holiday/caravan parks in the borough". Ms Burnett, identified one possible site, in Curzon Drive, but stated: "all other Travellers site across Thurrock are fully occupied and if we did house additional Travellers on the site, this may cause community tension". Mr Rulewski did not apparently pass on this information to Ms Gilmore.
v) On 28 May 2020, Ms Burnett emailed Mr Rulewski:
"I have been asked to try and establish a date we can work towards to apply for the full order. I have said that this
I have not been provided with any response to that email and, in his witness statement, Mr Rulewski does not confirm what he did to progress the matter towards a final hearing. Mr Rulewski's time record shows 12 minutes on 28 May 2020, which I presume relates to Ms Burnett's email. A total of one hour's work was done on the claim by Mr Rulewski in June 2020.
vi) On 1 July 2020, Ms Gilmore sent a further email to Mr Rulewski asking whether a date had been set for the final hearing of Thurrock Council's claim. Mr Rulewski did not respond. There is no entry in Mr Rulewski's time record until 30 minutes work on 28 July 2020.
vii) On 14 July 2020, Ms Burnett sent an email to Mr Rulewski asking whether he had heard from Caroline Bolton and "is there any timeline of when we will be able to apply for the full injunction". Mr Rulewski replied, the same day (not recorded in his time sheet):
"No worries – I'm trying to get a meeting pinned down this week if I can. Have the maps been updated following our emails last month do you know? Can I get copies of the updated maps? Could you also send me the final
viii) On 20 August 2020, Ms Burnett sent an email to Mr Rulewski asking whether he could let her know "how the injunction is progressing" as she was "keen to set up a meeting … to look at matters we need to focus on in order to obtain the full order". I have not been provided with any response to that email. Mr Rulewski's time record shows that the only work he did in the whole of August was a 30-minute meeting on 24 August 2020.
ix) On 2 September 2020, Ms Gilmore sent a further email asking whether a date for the final hearing had been fixed. Mr Rulewski did not respond to that email, but he forwarded Ms Gilmore' email to Mr Carver and Ms Burnett and added:
"… I have been contacted by the Gypsy Traveller association. We discussed getting some names together for a proposed meeting to discuss negotiated stopping etc…
Could you let me know who should be involved so I can email and start making arrangements for the discussions, so we can then be ready for the final injunction."
x) Mr Carver responded, on 3 September 2020, identifying three individuals who should be invited to the meeting Mr Rulewski had proposed. No further emails have been provided in relation to this proposed meeting and Mr Rulewski does not indicate in his witness statement whether any such meeting actually took place. No meeting is recorded in Mr Rulewski's time record.
"Therefore, as of September 2020 we were clearly making the arrangements before seeking a final injunction, and had every intention to seek that order."
He suggests that it was the intervention of the Court, in October 2020 to assemble the Cohort Claims, that led to the final hearing being delayed.
Abuse of Process: the law
v- Doctor [1997] 1 WLR 640, 647 per Lord Woolf. Other examples of abusive conduct in this category included 'warehousing' claims: Arbuthnot Latham Bank -v- Trafalgar Holdings [1988] 1 WLR 1426, 1437 per Lord Woolf. In Asturion Foundation -v- Alibrahim [2020] 1 WLR 1627 the Court of Appeal reviewed the relevant authorities (including Grovit, Arbuthnot, Realkredit Danmark A/S -v- York Montague Ltd [1999] CPLR 272 and Braunstein -v- Mostazafan & Janbazan Foundation (unreported CA, 12 April 2000). From these Arnold LJ stated the principle as follows ([61]):
"In my judgment [these] decisions … show that a unilateral decision by a claimant not to pursue its claim for a substantial period of time, while maintaining an intention to pursue it at a later juncture, may well constitute an abuse of process, but does not necessarily do so. It depends on the reason why the claimant decided to put the proceedings on hold, and on the strength of that reason, objectively considered, having regard to the length of the period in question. A claimant who wishes to obtain a stay of proceedings for a period of time should seek the defendant's consent or, failing that, apply to the court; but it is not the law that a failure to obtain the consent of the other party or the approval of the court to putting the claim on hold automatically renders the claimant's conduct abusive no matter how good its reason may be or the length of the delay."
v- Awada [1999] 2 Lloyd's Rep 244, 247-248 – that deciding to await the outcome of an appeal in a related case was not abusive.
persons unknown", and where a court has granted an injunction that affects third parties. Part 8 Claims are particularly at risk of stalling if there is no active defendant and the Court does not provide a case management timetable when the claim is first heard. This is what has happened in each of the four cases with which I am concerned (and there are further examples of lack of progress in other Cohort Claims).
v- News Group Newspapers Ltd [2013] EMLR 5, the Court considered the conduct of proceedings by the claimant, who had been granted an interim non-disclosure injunction on 14 April 2011. Eady J had made case management directions on 20 April 2011 which, had they been followed, would have seen the action come to trial between 3 October and 25 November 2011. However, on 12 May 2011, the claimant agreed with News Group Newspapers a general stay regarding service of its Defence but did not communicate this to the Court. As Tugendhat J noted ([25]), that agreement (and the failure to notify the Court) was a breach of CPR 15.5. Without progress to a final hearing, the interim non-disclosure order continued to bind third parties with notice of the terms of the order under the Spycatcher principle (see May Judgment [184]-[185]). Tugendhat J identified the mischief of this situation:
[78] Non-disclosure orders affect the Art 10 right of freedom of expression not only of the defendant, but also of others who may wish to publish or receive information. This is referred to as the 'Spycatcher principle' (see Attorney-General -
[79] The Practice Guidance on Interim Non-Disclosure Orders issued by the Master of the Rolls [[2012] 1 WLR 1003] addressed this point specifically:
"Active Case Management
37. Interim non-disclosure orders, as they restrict the exercise of the Article 10 Convention right and, whether or not they contain any derogation from the principle of open justice, require the court to take particular care to provide active case management. …
41. Where an interim non-disclosure order, whether or not it contains derogations from open justice, is made, and return dates are adjourned for
[80] The directions given by Eady J on 20 April… preceded this Guidance, but his order is fully in accordance with it. The effect of privacy injunctions on the Art 10 rights of third parties was well recognised before the Practice Guidance. The directions of Eady J were designed to achieve as quick a trial of this matter as practicable…
[103] The effect of s.12 [Human Rights Act 1998] (and the Cyanamid rules on interim injunctions) being so favourable to claimants is that defendants generally offer undertakings, or do not oppose the grant of an interim injunction, as happened in this case on 20 April. But because the law is favourable to claimants in this way, there is an incentive upon claimants to abuse the process of the court, so as to avoid the need to prove their cases at trial. Having obtained an interim non-disclosure order, it may appear to be in a claimant's interest to hold on to it as long as possible, and proceed to trial as slowly as possible, if at all.
[104] HRA s.12 and the other rules on interim injunctions assume that there will be a trial. Moreover, the anticipated delay between the hearing of the application for an interim injunction and the expected date of the trial is relevant to the further questions which a court has to consider if and when the court is satisfied that the claimant is likely to establish that publication should not be allowed. The court must then go on to consider (as it has to in any application for an interim injunction): (2) would damages be an adequate remedy for a party injured by the court's grant of, or its failure to grant, an injunction? (3) If not, where does the 'balance of convenience' lie?
[105] In particular, the shorter the anticipated delay, the more likely it is that the balance of convenience (or balance of justice as it is better referred to) favours the preservation of the status quo (i.e. non-disclosure). An interim injunction must be no more than is necessary and proportionate to achieve the legitimate aim of protecting the rights of the claimant (including Art 8 rights). So the shorter the period likely to elapse between the making of the interim order and the trial, the more ready the court will be to find that the interference with the Art 10 rights of the claimant and third parties is proportionate. And, of course,
[106] It was for this reason that Eady J, in his order of 20 April, laid down a timetable for the matter to proceed to trial. And it is for this reason that the agreement between the parties on 12 May to depart from that timetable was so serious. It was not just a breach of CPR Part 15.5. It was an abuse of the process of the court to interfere with the Art 10 rights of third parties, which had not been approved by any judge.
Abuse of Process: decision
Havering, Nuneaton and Bedworth BC and Warwickshire CC, Rochdale MBC and Thurrock Council have each been guilty of serious failures properly to progress their respective claims to a final hearing. The explanations given for the delays are not adequate. The worst conduct is that of Rochdale MBC which allowed its claim to become dormant for over 2 years following the grant of an interim injunction. The delays in prosecuting their claim were substantial and have not been adequately explained or excused. Each local authority demonstrated a complacency, even insouciance, towards the need to progress the claim. They arrogated solely to themselves the decision as to when the claim should be progressed to a final hearing and whether any periods of delay were justified, whilst all the while holding and enforcing an interim injunction of significant width. At no stage before the Court's intervention in October 2020 had any of these Claimants sought directions from the Court. As each Claimant had been granted an interim injunction substantially in the terms of the final order it sought, there was no effective incentive to progress the claim expeditiously. As no defendant has engaged with the proceedings, there was no opposition to this prolonged inactivity. There were cost implications of progressing the claims, a factor that was clearly influencing the decisions taken by, at least, Nuneaton and Bedworth BC and Warwickshire CC.
very far from satisfied with the explanations that have been given for the periods of inaction in the relevant claims, I am nevertheless satisfied, on the evidence, that LB Havering, Nuneaton and Bedworth BC and Warwickshire CC, Rochdale MBC and Thurrock Council did always intend to bring their claims to a final hearing, albeit on their own timetable. The various periods of delay in prosecuting their individual claims do not, on their own, amount to abuse of process. In making this decision, I accept that the Court must shoulder at least some of the responsibility for failing to make case management directions which would have prevented the claims stalling and for effectively placing the case management of the claims solely in the hands of the relevant Claimant(s). The Claimants in the four claims are not guilty of the type of abuse of process under the principles identified in Grovit and Asturion Foundation.
Persons Unknown" (at least where they bind 'newcomers') and interim non-disclosure orders which bind non-parties by virtue of the Spycatcher principle. In both cases (and unusually in civil litigation), the Court's coercive powers of injunction (granted only on an interim basis pending trial) reached beyond the immediate parties to the litigation and had an impact on third parties. Where the interim injunction interferes with fundamental rights of those third parties (Article 8 rights of Gypsies and Travellers in Traveller Injunctions and Article 8/10 rights in interim non-disclosure orders), then a failure properly to progress the claim to a final hearing following the grant of an interim injunction may well be found to be an abuse of process for the reasons explained in Giggs.
Havering, Nuneaton and Bedworth BC and Warwickshire CC and Thurrock Council properly to prosecute their claims to a final hearing having obtained, and continued to enforce, an interim injunction which bound 'newcomers' as "Persons Unknown", judged objectively, was an abuse of process. Having obtained an interim injunction that affected third parties, each Claimant was under a duty to progress the claim expeditiously to a final hearing and to ensure that case management directions were made that would achieve that. Each of these Claimants failed to do so and the consequent failure to advance the claims to a final hearing was an abuse of process.
Havering, Nuneaton and Bedworth BC and Warwickshire CC and Thurrock Council to prosecute their claims was an abuse of process, I nevertheless have to consider whether discharging the injunction they obtained is the right or proportionate response. Although there are powerful arguments that the Court should mark a finding of abuse of the process with an appropriate sanction, narrowly, and in the particular circumstances of these cases, I have reached the conclusion that it would not be right or proportionate to discharge the interim injunctions that were previously granted to the three local authorities. I have reached this conclusion for three principal reasons.
i) First, I am satisfied that none of the local authorities intended to abuse the Court's process (or were even aware that the failure to progress the claim could be regarded as an abuse). Subjectively, they all had reasons why they had failed to progress the claims and ultimately each did intend to bring its claim to a final hearing. As the Court had made no further directions in the claims, none of the Claimants was in breach of any order.
ii) Second, although analogies were available to be drawn with the Court's approach in interim non-disclosure cases, there was not a clear authority, warning parties in the position of the claimants, that a failure properly to prosecute claims could be regarded as an abuse of process.
iii) Finally, the better and more proportionate response, in my judgment, is now to ensure that each of the claims is managed as expeditiously as possible to a final hearing. I am satisfied that the finding of abuse of process against a local authority is a sufficient sanction.
view that the Court may take of a failure to do so.
Test Valley BC
Valley BC was not one of the local authorities required to answer whether their failure to progress the claim following the grant of an interim injunction was an abuse of process. Nevertheless, Test Valley BC's claim has certain features in common with the other four local authorities with which I am currently concerned.
Valley BC's claim was issued on 18 June 2020. The claim was brought against 89 named Defendants and "Persons Unknown forming unauthorised encampments within the borough of Test Valley". As against the "Persons Unknown" defendants, the Claim Form failed to comply with CPR Part 8.2A(1) and the requirements of Practice Direction 8A §§20.4-20.6 (see May Judgment [49]-[52]). The "details of claim" given in the Claim Form were in similar terms to those given in LB Havering's claim (see [5] above).
Valley BC made an application without notice and was granted orders relating to service of the Claim Form and other documents substantially in the terms of the order granted to LB Havering ("the Service Order") (see [6] above). There were changes to the service regime in Test Valley BC's Service Order. One significant change was that Test Valley BC was no longer required to provide a memory stick containing the evidence relied upon. The Service Order provided that it was sufficient for a digital link to the evidence to be provided and that Test Valley BC was required to provide copies of the evidence only upon request.
Valley BC's Part 8 Claim was supported by 17 witness statements and some 1,260 pages of exhibited material. In total, when printed out, the evidence occupies 6 ring binders.
Case Management
Sampling: getting an impression of the evidence against each named Defendant
Generic Evidence
i) Paul Ballard is the Community Policing Inspector for Essex Police in Thurrock. He has provided a witness statement in support of Thurrock Council's claim dated 18 July 2019. In his witness statement, he sets out various incidents, including unauthorised encampments. He exhibits contemporaneous police records (referred to as "STORM reports") that contain details of various incidents to which Mr Ballard refers. Ms Bolton referred to the following incidents that are detailed in Mr Ballard's statement:
23 September 2016: Moto, Thurrock Services
ii) On 23 September 2016 there was an unauthorised encampment at the Moto at Thurrock Motorway Services. From the STORM report it appears that 6 vehicles were present with one trailer. There had apparently been no report from anyone at Moto. Two of the vehicles had Irish number plates. Beyond details of the registered keepers of the vehicles (and any additional drivers insured to drive the vehicles) there is no evidence identifying any of the people that were present. Indeed, the police report does not identify how many people were present. In respect of only one of the vehicles was an individual registered keeper identified. She is the eighth named defendant to the claim. Some of the other vehicles were registered to companies or did not identify any keeper. On 24 September 2016, the STORM report records that the incident could be closed and that there were "no aggravating factors". Moto, Thurrock Motorway Services was not included in the interim injunction order.
1 June 2018: Aldi Stores car park
iii) On 1 June 2018, the police received a report that "travellers had set up camp" in the car park at Aldi Food Stores, London Road, Grays. The police identified four vehicles and two individuals who were present, who appear to be the 32nd and 51st named defendants. The STORM report records that there were three large caravans and some vans. The police served notices, under s.61 Criminal Justice and Public Order Act 1994, and the vehicles left. There is no record of any aggravating factors such as damage caused or fly-tipping. The Aldi Stores at London Road was not included in the interim injunction.
26 June 2018: Sandy Lane Farm
iv) On 26 June 2018, the police received a report that there were vehicles and caravans on a field at Sandy Lane Farm, South Ockendon. The occupation had caused damage to a crop that was growing there. The estimated cost of the damage was £50,000. Access had been gained to the land by smashing a gate and padlock. The STORM report records that there were 6 or 7 vehicles/caravans. A threat was recorded as having been made to the owner that they would burn her farm down. The police issued s.61 notices on 27 June 2018 and there is a record that the site was vacated by 15.30 on 27 June 2018. No individuals were identified by the police and the site was not included in the interim injunction.
South Ockendon Health Centre
v) Ms Bolton showed me the witness statement of the Practice Manager of the South Ockendon Health Centre, dated 25 July 2019. She stated that in the previous 2 years they had suffered 3 unauthorised encampments in the car park of the Health Centre on 18 September 2017, 26 February 2018 and 6 September 2018. The Practice Manager reported that there were up to 7 or 8 caravans present. She complained that when there was an encampment, the trespassers used the wheely bins of the Medical Centre, which needed to be emptied more regularly. Children would drive quad bikes around the car park and on the grassy areas outside the surgery. She reported one incident, in around February 2018, when a boy came and asked to use the toilet in the Health Centre. He was allowed to do so. The Practice Manager reported that she had checked the toilet and found it blocked with the tap running, which caused flooding. She added:
"Weeks later, the female toilets were repeatedly becoming blocked, we had to keep calling the plumber out to unblock the toilets and we couldn't find the cause of the blockage. Eventually the blockage was found and it was in the waste pipe, where one of the connectors had been taken off and a pair of denim jeans had been stuffed into the waste pipe and the connector secured back on. I can only attribute this to the man that had flooded the toilets originally".
vi) Whether or not the Practice Manager's conclusion is correct, so far as concerns these proceedings, none of the individuals who formed the encampment in the grounds of the Medical Centre has been identified (or is likely to be identified), and the site was not included in the interim injunction obtained by Thurrock Council. It is therefore not presently clear to me the relevance of this evidence to the claim.
Public House in Aveley
vii) Mr Burnett has provided a witness statement dated 25 July 2019. Ms Bolton took me to the following paragraph:
"[KF], who is the licensee of the [name of public house in Aveley given], speaks about the travellers behaviour in attempting entry to the pub and how his regulars react.
'The travellers often refuse to leave the premises and become argumentative accusing me of being racist. Another thing they do is to buy a round of drinks and refuse to pay for them.'"
It is difficult to see what a named defendant to the claim is expected to do when confronted with this evidence, beyond perhaps denying that s/he had behaved as the licensee alleged. I asked Ms Bolton what was the relevance of this evidence to the claim and which part of the injunction sought by Thurrock Council would have an impact on this alleged behaviour. Ms Bolton responded that the restriction on encampments in the injunction was directed at this behaviour. Ultimately, this will be a matter to be assessed at the final trial.
The sample defendants
D1
vehicles being present. In respect of one of those vehicles, D1 was one of 2 named drivers in addition to the registered keeper. The STORM report contains the details of the vehicles and the information that the police obtained as to registered keepers and authorised drivers. No action was taken by the police, as there was no report of any damage or other harm being caused. Ultimately, the police incident was closed on 10 July 2016 after an officer was sent to see whether the encampment was still on the site. It was not.
D2
vehicles being present. In respect of one of those vehicles, a Ford Focus, D2 was the registered keeper. The STORM report contains the details of the vehicles and the information that the police obtained as to registered keepers and authorised drivers. No action was taken by the police, who recorded:
"Unauthorised encampment set up in the corner of the large public car park, no damage caused as all
vacated by all persons, vehicles and caravans on 26 February 2018.
D3
vehicles and nine caravans being present. In respect of one of those vehicles, a Renault Master, D3 was the registered keeper at an address in Ireland. The STORM report contains the details of the vehicles and the information that the police obtained as to registered keepers and authorised drivers. Access to the site had been alleged to have been obtained by cutting open the gates, which had then been locked behind them. The report records that a fire had been lit and that "Council have witnessed fly-tipping taking place". There is no separate statement or other evidence from Thurrock Council relating to any alleged fly-tipping. The police served s.61 notices and the report records that the travellers had left by the early evening of 20 February 2018.
D4
vehicles present and up to 40 caravans. In respect of one of those vehicles, a Ford Transit, D4 was the registered keeper at an address in Ireland. The site was vacated, on 27 June 2016, following action by bailiffs. The police assessment was that it was not possible to determine whether there had been any fly-tipping on the site. From there, some of the travellers, including D4, then relocated to the Moto Thurrock Motorway Services, arriving there on 27 June 2016. The STORM report records some 12 caravans having been stationed at the site, but the occupants had stated that they only intended to stay for a few hours. An officer recorded that s/he had spoken to the night manager at Moto and there were no concerns at that time, and the land owner had not made a formal request that they leave the site. The site was vacated later that evening. The police report included the following:
"The site is not established at this time, with the exception of two caravans the remainder are all hitched up and parked as opposed to camped… There is no evidence of an intention to reside at this time therefore and including no formal request to leave has been given by the land owner, police powers are not appropriate at this time… The travellers acknowledged they had just left the Frankie & Benny's site following a civil eviction. They had no stated intention, but indicated that it was not their intention to remain at Motos'. It is likely under cover of darkness they will move off and enter a previously identified site and set up camp…"
D5
vehicle and one caravan. All four named individuals apparently provided fixed addresses in Tilbury. The police report records the following:
"The main occupant [named, but not one of the individuals identified by Mr Ballard] is not an Irish traveller but a local resident of Tilbury. He appears to have decided to adopt the traveller way of life and take his caravan from place to place locally. There is no known history of other trespasses involving [him] and his girlfriend or associates."
D6
vehicles and caravans. In respect of one of those vehicles, a Renault Laguna, D6 was the registered keeper at an address in Southampton. The police served s.61 notices requiring the occupants of the site to leave by 10am on 5 August 2016 and the STORM report appears to confirm that the site was vacated on 5 August 2016. There is no evidence of any fly-tipping or other damage beyond that caused to gain entry.
D7
vehicles had stopped up. In respect of one of the 15 vehicles the police identified, D7 was identified as the registered keeper of a Ford Transit at an address in Carshalton. The STORM report records that the police thought that the group were the same travellers who had been evicted from Thorndon County Park the previous day. Inquiries by the police suggested that the group intended to break up with some remaining locally and others heading to Northamptonshire. The police did not serve s.61 notices, but Moto took action to evict them and the site was vacated by 11 February 2018.
very general and vague. If it is the only evidence relied upon to establish fly-tipping on a particular occasion, Thurrock Council may find that the Court concludes that it is insufficient to discharge the burden of proof in relation to an allegation of fly-tipping against an individual named defendant. Ultimately, assessment of the value of this evidence will be a matter for trial.
D8
vehicle in respect of which D1 was a named driver. It is unclear what Thurrock Council's case is regarding its claim for an injunction to restrain D8 from fly-tipping.
value of this evidence, what it establishes by way of unlawful activity and any remedies to be granted will be a matter for trial.
Issues of fairness
Persons Unknown". The claims have been brought under Part 8. This means that there are no Particulars of Claim (or any other document) identifying what is alleged against each named defendant. The documentary material relied upon by each local authority is very substantial. The STORM reports are internal police records that would not be easy for a lay-person to understand. The evidential importance and relevance of some of the documents is only apparent when compared with other documents.
via a link to a website.
personally. I asked Ms Bolton, when we were looking at the evidence in relation to D2, whether she submitted that it was fair to expect D2, from the documents which had been served on her, to understand the case that was being made against her in the claim. Ms Bolton answered that whether D2 had read the documents was a matter for her and not something that should affect the Claimant's "entitlement to an injunction". Ms Bolton submitted that D2 had been served with the Claim Form and the evidence and it was irrelevant whether she had read and understood it. That is an alarming and unfortunate approach for a public authority to adopt towards litigation.
Views may differ as to whether this lack of engagement is because the relevant named defendant thinks that it is a "fair cop" or whether it is because s/he has simply failed to grasp the nature of the claim that is being made against him/her personally. The Claim Form presents the claim as a general claim for an injunction to prevent encampments and/or fly-tipping rather than a claim made against individuals.
person.
London for over 30 years. She referred to research published in 2018 by the Second Intervener. The research was based on interviews by 50 people from the Gypsy and Traveller communities across the UK. The key findings were:
i) One in five Gypsy and Traveller participants had never used the internet, compared to one in ten members of the general population.
ii) Over half of Gypsy and Traveller participants said that they did not feel confident using digital technology by themselves.
iii) Only two in five Gypsies and Travellers surveyed said that they use the internet daily, compared to four out of five of the general population.
iv) Only 38% of Gypsies and Travellers (33% if housed) had a household internet connection, compared to 86% of the general population.
i) Data running out: Of those surveyed, roughly one fifth of participants said that running out of data and not being able to afford any more was one of their biggest barriers to accessing the internet.
ii) Cost: Several people who did not have a household internet connection said that cost was a prohibitive factor in this.
iii) Signal: Several respondents said that poor signal was a barrier to them accessing the internet. According to figures released as part of the Race Disparity Audit in August 2018, Gypsies and Travellers are the ethnic groups most likely to be living in rural locations with 24.7% of Gypsies and Travellers living rurally, compared to 18.5% of the general population. This suggests that Gypsies and Travellers may be disproportionately affected by challenges in ensuring high speed internet connections in rural areas.
vehicle). Further, whatever criticism might be made of the survey based upon sample size or survey model, none of the local authorities presently before the Court appears to have carried out any research of its own nor have any of them provided any further or alternative evidence as to the levels of literacy and digital exclusion in the Gypsy and Traveller communities.
very clear view that the process of bringing a Part 8 Claim against multiple named defendants in these claims has led to a situation that risks causing real unfairness to the named defendants. This is because individual defendants may find it very difficult, practically, to identify what it is that they, personally, are alleged to have done. As Ms Bolton accepted, it is a fundamental requirement in civil litigation that a defendant understands the case that is being made against him/her. I have therefore made orders requiring each local authority to send a letter to each named defendant identifying the allegation(s) that the Claimant is making against each named defendant and the evidence relied upon in support of the allegation(s).