London Borough of Enfield v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 02 October 2020 |
| Neutral Citation | [2020] EWHC 2717 (QB) |
| Court | Queen's Bench Division |
| Date | 02 October 2020 |
| Docket Number | QB-2017-006080 |
[2020] EWHC 2717 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
London, WC2A 2LL
Mr Justice Nicklin
(By telephone hearing)
QB-2017-006080
QB-2020-003471
and
Mr S. Woolf appeared on behalf of the Claimant
THE DEFENDANTS were not present and were not represented
Mr O. Greenhall (instructed by Chris Johnson of the Community Legal Partnership) appeared on behalf of the Interested Party.
On 29 September 2020, I heard and application by the London Borough of Enfield for permission to amend the Part 8 Claim Form in an action that was originally issued on 21 July 2017, and an extension of an injunction (in modified terms) that was granted on 4 October 2017 (“the Final Order”) for a period of three years. The Claimant had been granted an interim injunction on 21 July 2017 (“the Interim Order”). The Application Notice in respect of that application was issued on 22 September 2020. The Claim Form in that action had been issued against “Persons Unknown”. In the original Claim Form, and indeed in the injunction orders, no description was given of the Persons Unknown in the title to the action.
The original Claim Form sought an interim and final injunction against the Persons Unknown pursuant to s.222 Local Government Act 1972 and/or s.187B Town and Country Planning Act 1990. The Local Authority brought the claim as the owner of around 130 public spaces within the London Borough of Enfield. The action was targeted at, “Unauthorised encampments throughout Enfield by Persons Unknown who are Travellers”, as well as attempting to obtain restrictions to tackle the problems of fly tipping at various sites.
On Monday this week, Mr Woolf for the Claimant, and Chris Johnson, who is a member of the Community Legal Partnership representing, on that occasion, a group called the London Gypsies and Travellers (“LGT”), made representations to the Court. Mr Johnson and LGT do not represent any individual Defendant, the Persons Unknown; rather LGT, and therefore Mr Johnson on their behalf, is an Interested Party.
There were several obstacles to the applicant's application to amend the Claim Form, and the application to extend the duration of the injunction order.
a. The Application Notice had not been served on any Defendant. Notices had not been posted at any of the sites in respect of which the Claimant was seeking to extend the injunction. By way of explanation for this failure, in the evidence provided to the court, the Claimant suggested that there had only been a “short time” available in order to carry out that notification procedure.
b. I was doubtful that the Court had jurisdiction to grant permission to amend a Claim Form and/or to extend an injunction made by a final order. The order granted on 4 October 2017 did not contain any provision to extend the duration of the injunction. Although not required to determine this point, it does seem to me arguable that after a final order has been granted, which does not contain a liberty to apply to extend, the proceedings are at an end. The Court has made its determination. Subject to an appeal, the only jurisdiction to vary a final order would appear to be that contained under CPR 3.1(7). The limits of that jurisdiction were considered by the Court of Appeal in Tibbles v SIG Plc [2012] 1 WLR 2591. In summary, an application under CPR 3.1(7) usually requires a change of circumstances. The expiry of the period for which the injunction was granted does not appear to me to be a change of circumstances. Indeed, it is specifically foreseen at the date on which it was granted that the injunction would be time limited.
c. Finally, and perhaps most seriously, it became clear that the Claimant had failed to serve a claim form on any of the Defendants in the original proceeding. CPR 6.3 sets out the methods of permissible service for a Claim Form. Without an order for alternative service, the only method by which the Persons Unknown could be validly served was by personal service in accordance with CPR 6.5. The Claimant did not contend that the Claim Form had been personally served on any of these Defendants. No order had been made for service of the Claim Form by alternative means pursuant to CPR 6.15, and no order had been made dispensing with service of the Claim Form under CPR 6.16. The Claim Form had therefore not been validly served on anyone when the matter came before the court on Monday this week.
Recognising those difficulties, at the hearing, Mr Woolf, on behalf of the Claimant, formally withdrew the original Application for permission to amend the Claim Form and to extend the duration of the Final Order in the original proceeding. Nevertheless, he indicated that the Claimant would wish to make a further application under CPR 6.15(2) for an order for alternative service, to validate the steps the council had taken to bring the original Claim Form to the attention of the Persons Unknown Defendants.
I gave directions for the service of an Application Notice, and for evidence in support by the Claimant for a hearing that was listed to take place today. LGT was also given the opportunity to file any evidence upon which it wanted to rely. The Claimant duly filed an Application Notice dated 30 September 2020 for the CPR 6.15(2) Application, together with a witness statement in support from Antonia Makanjuola, the Assistant Principal Lawyer in the Council's Legal Department.
In addition, yesterday, 1 October 2020, the council also issued a fresh Part 8 Claim. In summary, this claim effectively seeks to extend the injunction granted on 4 October 2017, albeit by way of a fresh claim, and in respect of now some limited 96 sites, compared to the 128 sites that were the subject of the Final Order in the original proceeding. Under CPR Practice Direction 8A §20.8, 21 days' notice is required before the Part 8 Claim can be dealt with. The council, as part of its application today, has asked me to abridge the time for service of the Application for an interim injunction. The interim order sought today is limited to fly tipping, and does not seek to restrain the occupation of land by Gypsies, Travellers or others. The Claimant intends to seek an order against “Persons Unknown” in that latter category at the hearing of the Part 8 Claim, but it is not part of the relief they are seeking today.
As recognised by the Claimant in its evidence, and Mr Woolf in his submissions, the legal landscape that governs proceedings and injunctions against Persons Unknown has transformed since the Interim and Final Orders were granted in this case. In chronological order the key cases are:
• Cameron v Liverpool Victoria Insurance Co Ltd [2019] 1 WLR 1471.
• Boyd v Ineos Upstream Limited [2019] 4 WLR 100.
• Bromley London Borough Council v Persons Unknown [2020] PTSR 1043.
• Cuadrilla Bowland Limited v Persons Unknown [2020] 4 WLR 29.
• Canada Goose UK Retail Limited v Persons Unknown [2020] 1 WLR 2802.
There are two issues immediately that I have to decide today:
a. Whether to grant the Claimant's Application under CPR 6.15(2), the effect of which is an order retrospectively to validate, as good service, steps already taken to bring the Claim Form to the attention of the Defendants in the original proceedings.
b. Whether to grant an interim injunction in the Claimant's new Part 8 Claim against Persons Unknown to restrain fly tipping at the 96 sites that are subject of the application.
CPR 6.15(2): Alternative Service
CPR 6.15 provides:
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule —
(a) must be supported by evidence; and
(b) may be made without notice.
(4) An order under this rule must specify —
(a) the method or place of service;
(b) the date on which the claim form is deemed served; and
(c) the period for —
(i) filing an acknowledgment of service;
(ii) filing an admission; or
(iii) filing a defence.”
An application under 6.15(2) is concerned with giving retrospective validation of an event that has already happened: AstraZeneca UK Limited v Vincent & Others [2014] EWHC 1637 (QB). There can be no question now of the Court permitting some future act of alternative service on the Defendants. The Claim Form in the original claim has long since expired.
The question is where there is a “good reason” to authorise service by an alternative method. Under CPR 6.15...
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