Birmingham City Council v Mr Shakeel Afsar

JurisdictionEngland & Wales
JudgeMr Justice Warby
Judgment Date08 April 2020
Neutral Citation[2020] EWHC 864 (QB)
Date08 April 2020
Docket NumberCase No: F90BM116
CourtQueen's Bench Division

[2020] EWHC 864 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

Sitting at the Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Warby

Case No: F90BM116

Between:
Birmingham City Council
Claimant
and
(1) Mr Shakeel Afsar
(2) Ms Rosina Afsar
(3) Mr Amir Ahmed
(4) Persons Unknown
(5) John William Allman
Defendants

Jonathan Manning and Clara Zang (instructed by Birmingham City Council) for the Claimant

Ramby de Mello and Tony Muman (instructed by J. M. Wilson Solicitors) for the First to Third Defendants

Paul Diamond and Thomas Green (public access barristers) for the Fifth Defendant

The Fourth Defendants did not appear and were not represented

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Warby Mr Justice Warby
1

On 26 November 2019, following a trial, I handed down judgment in this action (“the Trial Judgment”). In the light of that judgment I made an order (“the Final Order”) which included an Annex with injunctions against four of the five defendants, but left some issues for later resolution. This judgment deals with three applications that have been made since the Trial Judgment and Final Order. The applications raise issues about whether one of the injunctions contained in the Annex to the Final Order should be continued, whether two others should be varied, and whether the Trial Judgment should be amended.

The procedural background

2

This is a claim for injunctions to restrict protests outside a primary school (“the School”), aimed at teaching about “LGBT issues”. The claim form was issued on 29 May 2019, and on 31 May 2019 interim relief was granted following an application without notice. I continued that interim relief on 18 June 2019: see [2019] EWHC 1560 (QB) (“the Interim Judgment”). After a trial between 14 and 18 October 2019, I handed down the Trial Judgment: [2019] EWHC 3217 (QB). For the reasons set out in the Trial Judgment I concluded that there should be injunctions against the first four defendants, but not against the fifth defendant.

3

The first three defendants are individuals. The Fourth Defendant is “Persons Unknown”. I explained the nature and status of the injunctions I considered appropriate as follows:

“132. … it seems to me – subject to any further argument — that the final order against Persons Unknown in this case can only be made against persons who are parties to the action at this point in time. It cannot be framed in such a way as to extend to all members of the “transient, mobile” class described in the Particulars of Claim. It can only be made in terms that confine its effect to those who have been served with the proceedings prior to trial. It may be that the Council will have to give undertakings to use reasonable efforts to trace and identify those who do fall within the class of Persons Unknown who remain defendants to the claim, and targets of the final order.

133. The precise terms of the final order to be granted will remain to be settled by agreement or, failing that, by a decision from me. But the shape of the final relief I will grant should be clear enough from what I have said above. The individual defendants' freedom to protest in the street in ways that are anti-social, cause a public nuisance, or obstruct the highway, will continue to be curtailed to an extent that I consider is convincingly shown to be necessary in a democratic society in the pursuit of the legitimate aims I have spelled out. Persons Unknown, who have had proper notice of this claim, will be similarly restrained.”

4

At the hand-down hearing on 26 November 2019, I heard submissions from Counsel for all parties, and dealt with a number of consequential matters. In due course the Final Order was approved, sealed and issued, giving effect to the Trial Judgment. This took a little time, but on 16 January 2020 I approved a form of final order reflecting my decisions. It was dated 26 November 2019 because that is the date of the decisions which it recorded. The Final Order contained the following provisions:

1. (For the reasons and to the extent set out in the Judgment) the Claimant's claim for an injunction against the First, Second, Third and Fourth Defendants is granted.

2. The Claimant's claim for an injunction against the Fifth Defendant is dismissed.

3. The precise terms of the final injunctions to give effect to paragraph 1 above will be settled at a further hearing, and there shall be further submissions as to the basis and terms of the injunction against the Fourth Defendant and the scope of class of persons included within the definition of “persons unknown” (“the Remaining Issues”) as follows:

3.1 the Claimant shall file and serve written submissions by 16 January 2020;

3.2 the Defendants shall file and serve any written submissions in response by 4.00 pm on 24 January 2020;

3.3 the Claimant shall, if so advised, file and serve written submissions in reply by 4.00 pm on 30 January 2020;

4. For the purposes identified in paragraph 3 above the trial is adjourned to a date to be fixed (“the Adjourned Hearing”). Pending the Adjourned Hearing there shall be injunctions in the terms set out or identified in Annexe 1.

5. The Adjourned Hearing, at which the court will hear oral submissions on the matters identified at 3 above, may be listed on the first open date after 3 February 2020. Parties must provide the court with their dates of availability by 20 January 2020.

9. For the purposes of CPR 52.3(2)(a) “the hearing at which the decision is made”, and hence the hearing at which any application to this Court for permission to appeal must be made, shall be

9.1 in relation to the claims against the First, Second, and Third Defendants, the Adjourned Hearing;

9.2 in relation to the claims against the Fourth Defendant, the Adjourned Hearing or, if judgment on the Remaining Issues is reserved, the hearing at which that reserved judgment is handed down.

10. Pursuant to CPR 52.12(2)(a), time for any party to file an Appellant's Notice at the appeal court in relation to the claims against the First, Second, Third and Fourth Defendants is extended until 21 days after the date of “the hearing at which the decision is made”, as identified in paragraph 9 above.

5

The injunctions in Annex 1 provided for an “exclusion zone” around the School. The injunctions against the first, second and third defendants prohibited them from entering that zone except for specified purposes. In the case of the first defendant, the sole excepted purpose was to enter a specified mosque, from a specified road. The injunction against the second defendant contained the same exception, and two more: taking her children to the School, or collecting them, or for any pre-arranged meeting at the School. The Order against the Fourth Defendant was in these terms:

On 26 November 2019, the court gave judgment on a claim for final injunctions against the Fourth Defendant, but directed that there should be a further hearing (“the Adjourned Hearing”) to resolve the Remaining Issues (as defined in the body of the order dated 26 November 2019)

The Court Ordered that until after judgment on the Remaining Issues the interim injunction dated 10 June 2019 shall continue against the Fourth Defendant

6

I duly received further submissions from the claimant and the defendants about whether any and if so what relief can and should be granted against the Fourth Defendant. Those further submissions were in writing. They were delayed, initially due to a bereavement, arriving in January 2020. Then came a decision of the Court of Appeal that is directly in point. This led to a further round of written submissions on that issue. In the meantime, on 6 February 2020, the first and second defendants applied in writing for some further exceptions to be made to the exclusion zone order. They wish to be allowed to enter the exclusion zone for the purpose of visiting family members. On 16 March 2020, the claimants applied in writing for the “reinstatement” of part of the draft judgment circulated before the hand-down on 26 November 2020. Written submissions opposing that application were received on 24 March 2020. Meanwhile, on 19 March 2020, written grounds of appeal against the Trial Judgment and Final Order were submitted on behalf of the second and third defendants,

The Issues

7

These various communications give rise to six applications for resolution:-

(1) The Claimant's application for the Court to grant a final injunction against the fourth defendant (“the Persons Unknown Application”);

and

(2) and

(3) The applications of the First and Second Defendants, for the variation of the terms of the injunctions against them contained in Annex 1 to the Final Order (“the Variation Applications”);

(4) The Claimant's application for the “reinstatement” of part of the draft judgment; this, on analysis, is an application to waive confidentiality in part of the draft of the Trial Judgment, so I will call it “the Waiver Application”;

and

(5) and

(6) The applications of the Second and Third Defendants, for permission to appeal (“the Permission Applications”).

Determination without a hearing

8

Whilst all this was going on, and I was in the process of considering the parties' submissions, the Covid-19 pandemic struck the nation. On 23 March 2020, the Prime Minister announced what has since become known as “lock-down”, instructing everyone to stay at home and not to travel, save in specified circumstances. Legislation has since been passed to that effect. It has...

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3 cases
  • London Borough of Barking and Dagenham v Persons Unknown
    • United Kingdom
    • Queen's Bench Division
    • 12 Mayo 2021
    ...to… conduct which is alleged to be unlawful” Canada Goose [82(2)] (“the Description Requirement”). In Birmingham City Council v Afsar [2020] EWHC 864 (QB), Warby J held that the failure properly to describe “Persons Unknown” in the Claim Form was a “ fundamental defect”, adding, “ a person......
  • Kennedy Point Boatharbour Ltd v Barton
    • New Zealand
    • High Court
    • 23 Febrero 2022
    ...25 Provincial Rental Housing Corporation v Hall [2005] BCJ No. 95, 2005 BCCA 36, 250 DLR (4th) 112. 26 Birmingham City Council v Afsar [2020] EWHC 864; Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 27 Minute of 25 November 2021. 28 Commerce Commission v Viagogo AG [2019] NZ......
  • London Borough of Enfield v Persons Unknown
    • United Kingdom
    • Queen's Bench Division
    • 2 Octubre 2020
    ...to the fact that she or he is being made a defendant to the proceeding.” b. Further, in Birmingham City Council v Afsar & Others [2020] EWHC 864 (QB), the Claim Form in that case simply identified Persons Unknown, like this case, without a description of them. Warby J noted the following [......
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  • Commercial Landlord And Tenant Round-up 2020: Key Decisions Despite Covid Chaos
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    • Mondaq UK
    • 3 Diciembre 2020
    ...additional, practical guidance associated with injunctions against persons unknown was provided in Birmingham City Council v Afsar [2020] EWHC 864 (QB), which clarified that a final injunction cannot be granted against a transient, mobile class of people); and Secretary of State for Transpo......

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