B Havering & ors v Persons Unknown & ors  EWHC 2648 (QB)
When laying down very important principles for local authorities when seeking wide injunction orders against Gypsy and Traveller encampments in his judgment of 12 May 2021 ( see LB Barking & Dagenham & ors v Persons Unknown & ors  EWHC 1201 (QB) – and see our article on this matter at http://www.communitylawpartnership.co.uk/news/press-release-is-this-the-end-of-the-wide-injunction), Nicklin J was also very critical of four local authorities who, having obtained interim orders, failed to progress those to final hearings. He directed that those cases (and also a case for another local authority, Test Valley BC, where only directions were required for a final hearing) should be listed for a hearing to decided whether or not there had been an abuse of process.
The May judgment is now proceeding to a hearing in the Court of Appeal (listed for 3 days from 30 November 2021). Four of the local authorities that had interim orders sought to have the abuse of process hearing stayed until the Court of Appeal case was dealt but their application was rejected.
The abuse of process hearings took place from 28 to 30 July 2021. In a judgment handed down on 4 October 2021 (see case reference above), Nicklin J concluded that three of the local authorities had been guilty of abuse of process. He stated:
92. In my judgment, the failure by LB Havering, Rochdale MBC and Thurrock Council properly to prosecute their claims to a final hearing having obtained, and continued to enforce, an interim injunction which bound ‘newcomers’ as “Persons Unknown”, judged objectively, was an abuse of process. Having obtained an interim injunction that affected third parties, each Claimant was under a duty to progress the claim expeditiously to a final hearing and to ensure that case management directions were made that would achieve that. Each of these Claimants failed to do so and the consequent failure to advance the claims to a final hearing was an abuse of process.
93. If a claimant considers that there is good reason why a claim should be delayed – for example to await a decision in another case – then the Court’s sanction for the delay must be obtained. The complete deactivation of all case management which occurred in these claims must not be allowed to happen, particularly in cases where an interim injunction affecting third parties has been granted. Although, in the first instance, this is the Court’s responsibility, the parties also have an obligation to ensure that case management directions are made by the Court.
94. The interim injunction obtained by Nuneaton and Bedworth BC did not bind ‘newcomers’ in the same way. Although they are equally culpable for the failure properly to prosecute their claim, as the injunction did not bind ‘newcomers’, it was not an abuse of process in the way I have found.
95. Although I have found that the failure by LB Havering, Rochdale MBC and Thurrock Council to prosecute their claims was an abuse of process, I nevertheless have to consider whether discharging the injunction they obtained is the right or proportionate response. Although there are powerful arguments that the Court should mark a finding of abuse of the process with an appropriate sanction, narrowly, and in the particular circumstances of these cases, I have reached the conclusion that it would not be right or proportionate to discharge the interim injunctions that were previously granted to the three local authorities. I have reached this conclusion for three principal reasons.
i) First, I am satisfied that none of the local authorities intended to abuse the Court’s process (or were even aware that the failure to progress the claim could be regarded as an abuse). Subjectively, they all had reasons why they had failed to progress the claims and ultimately each did intend to bring its claim to a final hearing. As the Court had made no further directions in the claims, none of the Claimants was in breach of any order.
ii) Second, although analogies were available to be drawn with the Court’s approach in interim non-disclosure cases, there was not a clear authority, warning parties in the position of the claimants, that a failure properly to prosecute claims could be regarded as an abuse of process.
iii) Finally, the better and more proportionate response, in my judgment, is now to ensure that each of the claims is managed as expeditiously as possible to a final hearing. I am satisfied that the finding of abuse of process against a local authority is a sufficient sanction.
96. Finally, it is to be hoped that what has happened in these claims will not be repeated in future claims. The guidance given in the May Judgment () should, if followed, prevent actions being allowed to stall following the grant of an interim injunction. In the future, however, parties in similar litigation should be well aware of their obligations properly to prosecute their claims and the view that the Court may take of a failure to do so.
Nicklin J was also highly critical of the way the named defendants in these injunction cases had been dealt with. he carried out an exercise of looking at the evidence against 8 of the named defendants in the case brought by Thurrock Council. He found there was a very small amount of evidence concerning these defendants despite the enormous total volumes of evidence in these cases. He stated:
127. The exercise of looking at the claims against individual named defendants has, however, identified a concern about the fairness of the process. The claims brought by the five local authorities involve claims against a large number of individual named Defendants, as well as against “Persons Unknown”. …
128. …The effect of bringing one Part 8 claim against up to (and sometimes over) 100 named defendants is that any individual named defendant is confronted with a formidable task even to understand what s/he is alleged to have done. The relevant Service Orders granted to the local authorities allowed them to serve their evidence either on a USB stick or by providing an electronic link to a website where the evidence could be found. Ms Bolton [counsel for the local authorities] submitted that serving 6 ring binders of documents on an individual defendant would have been “inappropriate”, but the thrust of her submission is that it is nevertheless reasonable to expect the same defendant to access this evidence on a USB stick or via a link to a website.
129. I have identified the evidence that actually relates to the 8 individual sample defendants in the Thurrock case[described as D1 to D8]…As against each individual defendant, this represents a tiny fraction of the total evidence relied upon by the Claimant. This is simply not fair. It is not reasonable to expect any individual litigant to read, in Thurrock’s case, over 2,000 pages of documentation to identify what amounts, in some instances, to no more than 10 pages that contained the evidence against him/her personally. I asked Ms Bolton, when we were looking at the evidence in relation to D2, whether she submitted that it was fair to expect D2, from the documents which had been served on her, to understand the case that was being made against her in the claim. Ms Bolton answered that whether D2 had read the documents was a matter for her and not something that should affect the Claimant’s “entitlement to an injunction”. Ms Bolton submitted that D2 had been served with the Claim Form and the evidence and it was irrelevant whether she had read and understood it. That is an alarming and unfortunate approach for a public authority to adopt towards litigation.
130. No named Defendant has filed an acknowledgement of service or any evidence in response to the Claim. Ms Bolton relies upon this as demonstrating a lack of engagement by the named defendants and, she argues, a basis on which the Court can infer that the named defendants accept the allegations made against them. Views may differ as to whether this lack of engagement is because the relevant named defendant thinks that it is a “fair cop” or whether it is because s/he has simply failed to grasp the nature of the claim that is being made against him/her personally. The Claim Form presents the claim as a general claim for an injunction to prevent encampments and/or fly-tipping rather than a claim made against individuals.
131. In the Cohort Claims [dealt with in the May judgment], the Court has been provided with evidence that suggests that members of the Gypsy and Traveller Communities would find the task of accessing and considering this material more challenging than the average person.
132. The First Intervener filed a witness statement from Ilinca Diaconescu, dated 30 September 2020. Ms Diaconescu has worked with Gypsy and Traveller communities in London for over 30 years. She referred to research published in 2018 by the Second Intervener. The research was based on interviews by 50 people from the Gypsy and Traveller communities across the UK. The key findings were:
i) One in five Gypsy and Traveller participants had never used the internet, compared to one in ten members of the general population.
ii) Over half of Gypsy and Traveller participants said that they did not feel confident using digital technology by themselves.
iii) Only two in five Gypsies and Travellers surveyed said that they use the internet daily, compared to four out of five of the general population.
iv) Only 38% of Gypsies and Travellers (33% if housed) had a household internet connection, compared to 86% of the general population.
133. In addition to issues in relation to poor literacy and lack of skills and confidence, further barriers to online access were identified as:
i) Data running out: Of those surveyed, roughly one fifth of participants said that running out of data and not being able to afford any more was one of their biggest barriers to accessing the internet.
ii) Cost: Several people who did not have a household internet connection said that cost was a prohibitive factor in this.
iii) Signal: Several respondents said that poor signal was a barrier to them accessing the internet. According to figures released as part of the Race Disparity Audit in August 2018, Gypsies and Travellers are the ethnic groups most likely to be living in rural locations with 24.7% of Gypsies and Travellers living rurally, compared to 18.5% of the general population. This suggests that Gypsies and Travellers may be disproportionately affected by challenges in ensuring high speed internet connections in rural areas.
134. The Second Intervener filed a witness statement from Abbie Kirkby, dated 15 January 2021, on behalf of all the Interveners. Ms Kirkby is the Advice and Policy Manager at Friends, Families and Travellers, a national charity working to support the Gypsy, Traveller and Roma communities. Included within Ms Kirkby’s statement was a section dealing with educational inequalities experienced by Gypsy, Roma and Traveller communities. The Government’s Race Disparity Audit, published in April 2020, identified that 35% of Irish Traveller and 30% of Gypsy or Roma pupils met the expected standard for reading at ages 6-7 compared with the combined national average of pupils at 75%. 5.3% of Gypsy or Roma pupils and 9.9% of Irish Traveller pupils achieved English and Maths GCSE at grade C or above compared with the combined national average of 43.3%. Data from the 2011 Census, suggested that only 40% of Gypsies and Irish Travellers over the age of 16 hold any qualifications, compared to 78% of people in England & Wales as a whole.
135. Ms Bolton was dismissive of the survey evidence provided by Ms Diaconescu which she contended was “highly unacceptable”. She suggested that a survey limited to 50 people was insufficient and that there was also no evidence about the questions that had been asked. Ms Bolton also submitted that photographic evidence, obtained by the Claimants, showed that the named defendants were sophisticated people with businesses, who were using sites for commercial enterprises, and who owned “brand new Range Rovers” and “incredibly expensive caravans”. I cannot assess this submission, as I have not been shown the evidence to which Ms Bolton alluded, but I note that none of the individual defendants, D1-D8, was the registered keeper of a Range Rover (or similar vehicle). Further, whatever criticism might be made of the survey based upon sample size or survey model, none of the local authorities presently before the Court appears to have carried out any research of its own nor have any of them provided any further or alternative evidence as to the levels of literacy and digital exclusion in the Gypsy and Traveller communities.
136. Practice Direction 8A §9.2 mandates that claims for an injunction under s.187B Town & County Planning Act 1990 must be made by Part 8. I am concerned that the experience in these Cohort claims suggests that, at least where the claim is brought against multiple parties, use of the Part 8 procedure risks causing unfairness to the individual defendants and prevents a proper identification of what is alleged against each defendant. Proper and early identification of the allegations made against individual defendants may require that Particulars of Claim be provided and, even, that the claim be transferred to Part 7 if it appears that it there is likely to be a substantial dispute of fact.
137. Ultimately, it is for the Court to ensure that its processes are fair. I reached the very clear view that the process of bringing a Part 8 Claim against multiple named defendants in these claims has led to a situation that risks causing real unfairness to the named defendants. This is because individual defendants may find it very difficult, practically, to identify what it is that they, personally, are alleged to have done. As Ms Bolton accepted, it is a fundamental requirement in civil litigation that a defendant understands the case that is being made against him/her. I have therefore made orders requiring each local authority to send a letter to each named defendant identifying the allegation(s) that the Claimant is making against each named defendant and the evidence relied upon in support of the allegation(s).
This is an extremely important judgment on the issue of bringing interim injunction orders to a final hearing and treating named defendants fairly in terms of the evidence put to them. These five cases will now be listed for final hearing before Nicklin J. The first hearing, involving Thurrock Council, is now listed for 25 October 2021 with a time estimate of 5 days.
We will report back in due course regarding these important ongoing cases.
Chris Johnson, CLP, 17 October 2021