Manchester Corpn; v Connolly
| Jurisdiction | England & Wales |
| Judge | LORD DIPLOCK,LORD JUSTICE WIDGERY,LORD JUSTICE MEGAW |
| Judgment Date | 14 January 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0114-6 |
| Docket Number | 1969 No. 323 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 1970 |
[1970] EWCA Civ J0114-6
Lord Diplock,
Lord Justice Widgery
and
Lord Justice Megaw
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from the Chancery of the County Palatine of Lancaster, Manchester District.)
MR. CHARLES FLETCHER-COOKE, Q.C. and MISS NINA STANGER (instructed by Mr. Peter Kingshill, London) appeared on behalf of the 14th, 15th, 20th and 21st Defendants.
MR. STEPHEN SEDLEY (instructed by Mr. Peter Kingshill, London) appeared on behalf of the remaining Defendants.
MR. ALEXANDER SIMPSON (instructed by Mr. G.C. Ogden, Lanchester) appeared on behalf of the Plaintiffs.
(As revised)
This is an unfortunate case, because it deals with a group of people who have hitherto at any rate found themselves unable to adjust themselves to modern social conditions. They are gypsies not in the romantic and evocative sense of the term, but in the statutory sense that they are persons of nomadic habit of life whatever their race or origin. They have no fixed abode, but live an itinerant life in caravans, though it appears from the evidence that the itinerary some of them make seems largely restricted to the City of Manchester and its environs. But however unfortunate they may be, that does not entitle them to flout the law. The duty of the court when its aid is sought is to administer the law. While I should be the last - or sitting in this court perhaps the last but one - to say that it is no part of the function of the courts to develop the common law so as to adapt it to changing social conditions, it is not within the court's power, and no part of its function, to provide solutions to sociological problems which call for administrative action by central or local government such as would be involved in the construction and supervision of suitable sites for gypsies. That is a matter for Parliament and Parliament has in fact already dealt with it in Part II of the Caravan Sites Act 1968, but that part of the Act is not yet in force, it has still to be brought into force by an order of the Minister. This case does perhaps show the urgency of bringing that Part of the Act into force.
The facts of this case can be stated quite shortly. In September 1969 a number of caravans began to be left on a vacant site in the City of Manchester belonging to the Manchester Corporation. It would appear from the evidence that some of them at any rate came from a vacant site belonging to the University where they had attracted not unnaturally the sympathy of some of the students at the University. The site to which they came belonging to the Manchester Corporation is a cleared site of considerable extent. It had no sanitary facilities, water supply or provision for refuse disposal, and the evidence (which for practical purposes was uncontested) is that the presence of these gypsies, theircaravans, their vehicles, their children on this site has rendered it a danger to public health.
On 29th November, 1969, the Manchester Corporation gave notice under the powers conferred on them by Section 27 of the Manchester Corporation Act, 1962, requiring the defendants to remove their caravans from the site. That notice was not complied with and on 2nd December the Corporation's appropriate Officer came on to the site with the intention of towing away the caravans. When he got there and while he was on it there arrived on the site some eight young persons who were students at Manchester University, and one of them told him that she was Secretary of the Manchester University Students' Union and that if the Corporation started to tow the caravans away there were between sixty and one hundred students in the refectory who were ready at a moment's notice to come on to the site. In order to avoid a breach of the peace he accordingly did not carry out his intention of towing away the caravans.
On 8th December the Manchester Corporation issued a writ in the Chancery of the County Palatine of Lancaster in which they sought an injunction "restraining the defendants and each of them by themselves their respective servants or agents or otherwise from knowingly entering or remaining or causing or permitting motor vehicles, caravans, or other vehicles or movable dwellings to be placed or remain upon any vacant land belonging to the Plaintiffs, and particularly the Plaintiffs' land bounded by Brunswick Street, Stockport Road, Shakespeare Street, Plymouth Grove and Upper Brook Street in the City of Manchester" and also "an order that the Defendants do forthwith give the Plaintiffs possession of the Plaintiffs' said land". On the same day they took out a motion for an interlocutory injunction in the terms set out in the writ, and also for an interlocutory order upon the Defendants to give up possession of the land.
On 10th December the Writ and the Notice of Motion were served upon the Defendants and on 11th December the motion was heard before the Vice-chancellor. It was adjourned on the Defend-ants' request until the 15th December, on, which date the learned Vice-Chancellor made an interlocutory order granting the injunction in the terms asked with a minor variation with which I will deal in due course, and also ordering "that the said Defendants do forthwith give the Plaintiffs possession of the Plaintiffs' said land who are to be at liberty to issue a Writ of Possession at any time after noon on Monday, 22nd December, 1969". The learned Vice-Chancellor took the view that there was no possible defence to this action. Here were the Defendants flouting the law and it would be a misuse of the process of the Courts to allow them to continue to do so during a period, necessarily of some not inconsiderable duration, before the action came on for trial and the Plaintiffs obtained final judgment to which in the Vice-Chancellor's view they would inevitably be entitled. On 19th December shortly before Christmas the Court of Appeal on the application of the Defendants suspended the injunction until the first day of the present sittings and ordered the appeal to come on on that day, which it has done.
Mr. Fletcher-Cooke's real complaint on behalf of the Defendants whom he represents is that from a practical point of view the injunction disposes of the matter. It gives to the Plaintiffs the remedy they require before the action has been tried. The defendants, he says, are entitled to their day in court and entitled to continue to trespass as long as the day of the trial can be postponed. If this involves a danger to public health, as, on the evidence, it plainly does, he says the Corporation as the sanitary authority should in the meantime provide the trespassing Defendants with all the necessary amenities to make their unlawful occupation comfortable for them and safe to the public.
If there were any arguable defence to the Plaintiffs' claim it would be necessary to consider the balance of convenience as between the hazard to health of the public which is involved in the Defendants' remaining there and the hardship to the Defendants involved if they are compelled to move. But if there is nopossible defence to the action I agree with the Vice-Chancellor that it is a misuse of the process of the Court to withhold from the Plaintiffs a remedy to which they are clearly entitled while the normal stages preparatory to the trial of a genuinely contested action are being gone through with the inevitable delay. Since delay in eviction from the site is what is really sought by the Defendants, to do so would be to give to wrongdoers the fruit of their wrongdoing, although judgment in the action would inevitably ultimately be given against them.
The Vice-Chancellor, as I have said, took the view that there was plainly no defence to this action. The Defendants complain that it was premature for him to form that view; had he waited for the trial it might have been possible to adduce material which would disclose some defence. During the month which has passed since the Vice-Chancellor's order, the Defendants have had the opportunity, and availed themselves of it, to file voluminous evidence, much of it of great intrinsic interest, but of marginal relevance, on which they would seek to rely as a defence to the Plaintiffs' claim and have had ample opportunity of considering any arguments capable of supporting such a case These arguments have been expounded with great skill and eloquence by Mr. Fletcher-Cooke and Mr. Sedley on behalf of the Defendants. It is not their fault if at the end of it all I can only describe the suggested defences as fanciful. The most skilful counsel cannot make bricks without any straw.
I will deal very shortly with the defences which are adumbrated. First it is said that the Plaintiffs are disentitled to relief because they are in breach of statutory duty which they owe to the Defendants. I will not pause to consider what the effect would be upon the Plaintiffs' right to interlocutory injunction if any breach of statutory duty of the kinds suggested were established, for in my view no shadow of a case has been made of a breach of statutory duty owed by the Corporation to the Defendants. The first suggestion made is that there was a duty upon the...
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...an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780. A hospital is no different ......
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...No. 200) PARTY PROVIDING THE LIST: The Plaintiff NAME OF COUNSEL: A N Other QC, BC Dobbs CASES 1* Manchester Corporation v Connolly [1970] 1 Ch 420 at 427G to 429B 2* Guild v IRC [1992] 2 AC 310 at 315G to 316B 3 Higgins v Job [1982] EGLR 300, page 72, line 8 (copy provided) TEXT BOOKS 1* C......