Sun Street Property Ltd v Persons Unknown (Defendants/Applicants)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ROTH |
| Judgment Date | 07 December 2011 |
| Neutral Citation | [2011] EWHC 3432 (Ch) |
| Docket Number | Claim No: HC11C04095 |
| Court | Chancery Division |
| Date | 07 December 2011 |
[2011] EWHC 3432 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr Justice Roth His Honour Judge Hullhis Honour Judge Hull
Claim No: HC11C04095
MISS K HOLLAND QC and MR J WILLS (Instructed by DLA Piper UK LLP) appeared on behalf of the Claimant/Respondent.
MR S KNAFLER QC and MR D RENTON (Instructed by Bindmans LLP) appeared on behalf of the First Defendant/Applicant.
The Second Defendant/Applicant appeared in person.
Approved Judgment
Wednesday 7 December, 2011
There are two related applications before the court. Both concern the occupation by the applicants and others of a large commercial complex of buildings in the City of London, north of Finsbury Square. It is bounded by Sun Street, Clifton Street, Earl Street and Wilson Street. I shall refer to it as "the Property", and I shall refer to those who are currently occupying the Property by the way they have described themselves before the court, as "the Occupiers". The Property is owned by the respondent to the applications (the claimant in the underlying proceedings). The claimant is a company in the UBS banking group.
On 18 November 2011, in circumstances to which I shall return, the court made three orders: first, an interim injunction restraining trespass on the property; secondly, an order abridging to 45 minutes the time for service of proceedings for possession; thirdly, a final order for possession of the property. These applications seek to set aside the injunction and the possession order.
The Occupiers have established on the Property what they call a "Bank of Ideas" and, as explained in their evidence and expanded at the hearing, this involves the establishment of a community project in the property with various activities and also, more particularly, they seek to draw attention to what they claim is the inequitable use of resources and the commercial practices of UBS as a major bank. I should, therefore, make clear at the outset that the court is not expressing any view as to whether these opinions of the Occupiers or their political and social objectives are well founded or mistaken, or as to whether or not these views deserve support. The concern of the court (and the only concern of the court) is with legal rights of, respectively, the applicants and the respondent.
The application to set aside the injunction was issued on 21 November and came before me in the Applications List on 28 November, when the applicants appeared in person. The court was addressed by Mr Peter Phoenix on behalf of himself and his colleagues, and he asked that the matter be adjourned to enable them to arrange for legal representation and to file evidence. Despite some resistance by the respondent, I acceded to that request and also directed that the second application, which was issued on 24 November, seeking to set aside the possession order, be stood out to come on at the same time, namely the afternoon of 5 December. At the outset of the hearing on 5 December, at his request and with the consent of the respondent, Mr Nicholas Scott was added as an applicant. Mr Stephen Knafler QC and Mr David Renton of counsel appeared instructed by Bindmans, I think formally on behalf of Mr Smith, but effectively for the applicants in general. But Mr Phoenix continued to represent himself and he also addressed the court. Miss Katherine Holland QC appeared (as she has throughout) for the respondent, now with the assistance of Jonathan Wills of counsel, instructed by DLA Piper.
The events of 18 and 19 November
In the early hours of Friday, 18 November, a large number of persons, including the applicants, gained access to the property, which was unoccupied. They placed notices around the property, one of which reads as follows:
"To whom it may concern.
We are a Community Arts collective.
Having noticed this building has been empty for an extended period, we have occupied the property to set a community project and an exhibition.
We have begun tidying and repairing the space, and assessing health and safety requirements. Preparations are being made for a number of community project uses.
We are prepared to discuss our interim use of the space, as this property is unused we feel a community project would be of great benefit to the people and the area.
We are caretaking the space until further notice. We are always willing to negotiate and discuss various options.
There may not be a need to go to court as we hope a mutually beneficial arrangement can be agreed. If you would like to contact us you can do so on the following number. Tel [mobile number provided].
Please provide our Legal observers with a contact for your organisation.
This project is being filmed for a documentary on community regeneration."
The other notice was headed prominently " LEGAL WARNING" and began:
"TAKE NOTICE
That we live in this property, it is our home and we intend to stay here."
The notice then continues:
"If you want to get us out you will have to issue a claim in the County Court or in the High Court or produce to us a written statement or certificate in terms of S.12A Criminal Law Act, 1977."
The reference to section 12A is to a statement by someone intending to occupy premises as their residence.
At about 6.45 p.m. on 18 November the respondent sought and obtained an urgent "without notice" interim injunction. The application to the court was supported by a witness statement from Mr Duncan Freeman of the respondent's solicitors, which exhibited reports about the occupation of the building and stated that "Due to the numbers likely to attend" the respondent had concerns about financial damage to the Property and as to the welfare and safety of those coming onto the property, referring, among other things, to the state of the electricity and gas on the Property, as they had not been tested for some time, and similarly the state or condition of the lifts. That application was made against persons unknown entering or remaining on the Property, and the resulting injunction prohibited such persons from entering or remaining on the land. In the same hearing, the respondent placed before the court a claim form, seeking an order for possession under CPR 55, and obtained an order abridging time for the service of possession proceedings to 45 minutes. The court ordered that service may be effected by fixing the order and documents to conspicuous places around the Property.
At about 9.10 p.m. a process server then fixed around the Property some ten bundles of documents, which he states comprised the following:
1. A claim form for an injunction.
2. An order for injunction.
3. An application for an injunction.
4. A claim for possession.
5. An application to abridge time.
6. A certificate of reasons.
7. A draft order for possession.
8. The first witness statement of Mr Freeman with its exhibit.
At about 9.15 p.m. Mr Freeman sent a text message to the mobile number which appeared on the Occupier's notice (to which I have referred) and which stated:
"To whom it may concern.
Further to the occupation today by Occupy London of the former UBS building, this text is to inform you that an injunction order has now been granted on 18 November 2011 to restrain the trespass together with ancillary orders and a copy of this injunction has been posted at conspicuous places around the Property."
At around 10 p.m. the respondent's legal team assembled outside the Rolls Building in Fetter Lane, and from the street rang Proudman J to proceed with its possession application. No one attended from the applicants or the Occupiers. The judge proceeded to hear the application over the telephone, and made an order requiring the defendants or respondents to that application (the present applicants and Persons Unknown) to give up possession forthwith. Miss Holland told the court, and I of course accept, that Proudman J had made it clear that if anyone had attended on behalf of the Occupiers, the judge would not have conducted a hearing by telephone, still less where the parties were in the street, and had indicated that she would then make arrangements for a hearing in her presence to take place either that evening or the next day.
The possession order was not served or indeed notified to the Occupiers that evening, or indeed the next morning. It was served, again by being fixed to the Property, at about 10.40 p.m. the next day. That being a Saturday, the order was unsealed and a further sealed copy was served subsequently, in fact only during the evening of Tuesday 22 November.
The present applications.
I consider that there are important differences in the approach to be taken to the interim injunction and the possession order, and I shall consider them separately.
(a) The Interim Injunction.
At the forefront of his submissions seeking to discharge the injunction, Mr Knafler submitted that it should not have been granted without notice. He stressed that without notice injunctions are exceptional and should be used only where immediate intervention by the court is required, referring to the well-known passages in the Court of Appeal decision in Moat House Group-South Ltd v Harris [2005] EWCA (Civ) 287, [2006] QB 606. He said that the respondent could have contacted the Occupiers on the telephone number provided during the day on 18 November and drawn any alleged health hazards to their attention. Further, the legislative scheme for acquiring possession was by...
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