London Borough of Havering v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 04 October 2021 |
| Neutral Citation | [2021] EWHC 2648 (QB) |
| Docket Number | Case Nos: QB-2017-005202 QB-2019-002737 QB-2019-002738 QB-2020-002112 |
| Court | Queen's Bench Division |
[2021] EWHC 2648 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Nicklin
Case Nos: QB-2017-005202
QB-2019-000616
QB-2019-002737
QB-2019-002738
QB-2020-002112
and
Caroline Bolton and Natalie Pratt (instructed by Sharpe Pritchard LLP and 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
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
On 12 May 2021 ( [2021] EWHC 1201 (QB) (“the May Judgment”), I handed down judgment in relation to common issues of principle that had arisen for determination in a cohort of claims in which Traveller Injunctions had been granted (see [4]). I adopt the same definitions in this judgment. The numbers allocated to the Claimants in this judgment reflect the number of the relevant Claimant in the Cohort – see Appendix 1 to the May Judgment. In that judgment, I identified several claims in which interim injunctions had been granted that had not been progressed to a final hearing, arguably amounting to an abuse of process (see [86]–[101]).
On 24 May 2021, consequent upon the May Judgment, I directed that, in the claims brought by LB 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
Before turning to the chronology of each action, it is important to note what was happening in the general area of Traveller Injunctions. On 17 May 2019, Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, had given her important judgment refusing to grant a final Traveller Injunction against “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.
The Deputy Judge granted permission to appeal, and LB Bromley filed an Appellant's Notice on 6 June 2019. Several parties were given permission to intervene in the appeal, including the First Interveners in the Cohort Claims, Liberty, and several local authorities from the Cohort Claims including Thurrock Council. The Court of Appeal heard argument on 3 December 2019 and judgment was handed down on 21 January 2020 ( [2020] PTSR 1043).
(1) LB Havering
The Part 8 Claim Form was issued on 31 July 2019. It named 105 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 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 Borough and has suffered a number of unauthorised encampments throughout its Borough within the last 3 years as detailed in the witness statement evidence. In addition, a number of privately owned commercial, industrial and other similar sites have also been the subject of unauthorised encampments in breach of planning control. The details of these and the impacts suffered by local businesses are contained in the witness statements filed in support of this claim.
3. The London Borough of Havering is a medium sized London Borough and has experienced significant issues associated with unauthorised encampments, including fly-tipping, anti social behaviour, violence, public order and property damage. The Claimant has experienced environmental and health risks as a result.
4. The encampments are having a detrimental impact on the borough's residents and businesses, as well as the enjoyment of public open spaces and sporting grounds. Existing powers are being undermined and are ineffective. The law is being flouted repeatedly and the Claimant has experienced significant expense both in legal costs and clear up costs. Service of s.77 CJPOA 1994 orders only leads to encampments moving from one site to the next and has not deterred the unauthorised encampments from forming further encampments within the Borough.
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 Havering and to prevent further apprehended breaches of planning control and to prevent further acts of anti-social behaviour to seek an injunction to prevent repeated establishment of unauthorised encampments.
6. It is necessary to bring these proceedings against persons unknown and to deter any unauthorised encampments on specified sites by such persons. It is not possible to identify all of the individuals who have formed part of these unauthorised encampments, many of whom are not prepared to identify themselves. The draft order attached to this claim form recognises that a more limited order should be sought against persons unknown. Accordingly, the order sought confines the scope of the injunction against persons unknown to specified areas within the Borough.”
Prior to the issue of the Claim Form, on 31 July 2019, LB 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 personally serve the 1st to 105th Defendants pursuant to CPR 6.14 and 6.15 the Claimant shall be permitted to serve any such Defendants by leaving a copy (as opposed to an original) of the application notice, claim form, draft order and supporting evidence in a clear transparent envelope and affixing the same to a caravan, mobile home or other vehicle, or to the front door of any residential premises which in each case is reasonably believed to be owned or occupied by the said Defendants, or by putting such copy documents thought the letter box of any such residential premises. Any such copy documents served by this method will be deemed served the second working day after service of the application notice and claim form.
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 Havering Town Hall Main Road, Romford RM1 3BB, between the hours of 10am and 4pm Monday to Friday excluding public holidays.
5. The claim form and application shall be deemed served on persons unknown (106th Defendant) pursuant to CPR 6.14, 6.15. 6.26 and 6.27 by serving a copy (as opposed to an original) of the claim form, application notice and draft order on all sites identified in Schedule 2 and 3 of this order by affixing them in a prominent place on the Land with a notice to persons unknown that a copy of the supporting evidence can be obtained from the Council offices at Havering Town Hall Main Road, Romford RM1 3BB between the hours of 10am and 4pm Monday to Friday, excluding public holidays, and by providing a digital link to a copy of the evidence on the Claimant's website.
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.”
As noted in the May Judgment (see [42]) an order for alternative service was granted in similar terms to LB Barking & Dagenham. LB 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...
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