The Council of the City of Swansea (Applicant) Mr. J. Rafferty Mr. Rafferty Mr. Rafferty Mr. D. Birmingham Mrs. D. Birmingham Mr. M. Birmingham Mr. T. Birmingham Mr. M, Fury Mrs. Fury Mrs. Sheridan Mr. D. O'Brien Mr. C. McCarthy Mr. N. Mulligan Mr. J. Murphy and Mr. E. Jones Respondents whose names are known to the Applicants (Respondents)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE SHAW |
| Judgment Date | 19 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0519-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1978 |
[1978] EWCA Civ J0519-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from order of His Honour Judge Burrell - Swansea County Court)
(Revised)
Lord Justice Megaw and
Lord Justice Shaw
In the Matter of an Originating Application for Possession under Order 26
And in the Matter of Land known as Weavers North Dock, Half Tide Basin, Swansea:
Mr. JOHN DIEHL (instructed by Messrs. R.B. Whittingham & Sons, Bridgend) appeared on behalf of the Appellants (Respondents).
Mr. CHRISTOPHER MORTON (instructed by Mr. A.N.F. Rees, Chief Executive & Town Clerk, Swansea) appeared on behalf of the Respondent (Applicant).
(without calling upon Counsel for the Respondents)
I should wish to begin by expressing my appreciation for the very clear and, if I may say so, able manner in which Mr. Diehl has presented, on behalf of the appellants, an argument in a case which does involve for the appellants very substantial difficulty. Everything that can properly be said in support of the appeal has been said, clearly and fairly and fully,
The appeal is from an order made by Judge Burrell in the Swansea County Court on 7th March of this year. By that order the learned judge ordered that the applicant (the respondent in this Court), the Council of the City of Swansea, should recover possession of the land known as Weavers North Dock, Half Tide Basin, Swansea, under the provisions of Order 26 of the County Court Rules 1936 as recently amended by the County Court (Amendment No. 3) Rules, 1977. The respondents to the application under Order 26 in the Swansea County Court, who are the appellants in this appeal, are 15 persons: three gentlemen named Mr. Rafferty, a Mr. D. Birmingham, a Mrs. D. Birmingham a Mr. M. Birmingham, a Mr. T. Birmingham, Mr. M. Fury, Mrs. Fury, Mrs. Sheridan, Mr. D. O'Brien, Mr. C. McCarthy, Mr. N. Mulligan, Mr. J. Murphy and Mr. E. Jones. They are, as we are told by Mr. Diehl, persons who fall within the statutory description of "gypsies" in section 6 of the Caravan Sites Act, 1968. We have not actually been referred to the definition, but, as I understand it, that definition has nothing to do with racial origin but is a statutory description given to persons who follow what is called a nomadic habit of life.
We are told by Mr. Diehl, as the background to this case, that difficulties have arisen and delay has occurred — and when I say delay has occurred I am not, of course, expressing any view as to fault or blame — in respect of the provision of a site for gipsies by the West Glamorgan County Council under section 16 of the Caravan Sites Act,1968. As the result, we are told, various persons, including the appellants in this appeal, have from time to time moved in (as trespassers, as Mr. Diehl concedes) on pieces of vacant land in various parts of West Glamorgan and also within the area of the respondent Council of the City of Swansea. There have been, in relation to various persons within this description, applications made by the authorities under Order 26 of the County Court Rules to remove them from sites on which they have come with their caravans. The present case arises out of one such instance. Some time in, I think, the month of February, 1978, a substantial number of caravans - we were told, I think, about 40 in number, providing living accommodation for perhaps about 150 people - moved into the land to which I have referred, Weavers North Dock, Half Tide Basin, in Swansea. That place, used to be a dock. It has been filled in and become an area of open land. It is owned by the Swansea Council and has been converted by them for use as a car park.
The Swansea Council, on 22nd February, 1978, put forward in the Swansea County Court an originating application for possession under Order 26 of the County Court Rules. That Order is, of course, the Order corresponding to Order 113 of the Rules of the Supreme Court, which provides for summary procedure for obtaining an order for possession in certain circumstances. The originating application was made on behalf of the Swansea Council through their Solicitor, Chief Executive and Town Clerk. He in his originating application, dated 22nd February, named the 15 persons whose names I have read out, and also said "There are other persons in occupation whom the applicant has been unable to identify". The notice of application provided that "Any person occupying the premises mentioned in the application who is not named as a respondent may apply to the court to be joined as a respondent": and then the address for service is given.
An affidavit was sworn in support of that originating application. It was sworn by Mr. Peter Edward Grant on behalf of and with the authority of Swansea City Council, It was sworn on the same day as the originating application, 22nd February. In that affidavit Mr. Grant set out that the Swansea City Council were the owners of Weavers North Dock. That is not in dispute. Mr. Grant also deposed that on the 17th and 22nd February, 1978, he visited the dock in an attempt to establish the identities of all the persons in occupation who, he said, had come into occupation in February with caravans without the licence or consent of the applicant Council. Then Mr. Grant in his affidavit said: "The persons in occupation who are intended to be served individually with this application are….": and then he set out seriatim the 15 names that I have already read. He then applied for leave of the court, on grounds of urgency, for the hearing of the application within 5 days of the date of service, because of what he described as "the imminent hazard to health and the non-use of the plaintiff's official car park because of the siting of the respondents' caravans". He added that there were other persons in occupation whom he had been unable to identify.
An ex parte application was made on behalf of the Council on 27th February, asking for the hearing to be expedited; and an order was made giving leave for the hearing to be on 2nd March. In fact, for some reason, it was adjourned from 2nd March; and the ultimate hearing took place and the judgment was given on 7th March.
At the hearing before Judge Burrell on 7th March, the 15 persons were all represented in the County Court by Mr. Diehl, instructed by solicitors who were, as we understand, instructed on behalf of all the 15 persons. The issue that was raised before the learned judge was that an order for possession ought not to be made because there had not been proper service under the requirements of Order 26 of the CountyCourt Rules. That matter was raised in two respects. The principal matter put forward was that 6 of the 15 named respondents had not been personally served with notice of the application and of the intended hearing; and there was further complaint that in relation to the...
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