Cornerstone Planning

Progressing interim injunctions

A High Court judge recently accused four councils of abusing the court’s processes by failing to progress interim injunctions granted against ‘persons unknown’. Roderick Morton looks at the challenges faced by local authorities.

Another month, another injunction decision! Following our article last month regarding the recent dismissal of Hackney’s claim for a borough-wide injunction against Covid protestors, we report on a further planning injunction case, this time involving Havering, Nuneaton and Bedworth, Warwickshire CC, Rochdale MBC, Test Valley BC and Thurrock councils, heard at the start of October. The case of LB Havering and others v Persons Unknown and others [2021] EWHC 2648 (QB) is notable for two reasons. First, the need to progress injunctions to final claim stage and second the judge’s comments on evidence.

The councils had previously obtained interim injunctions in 2018 and 2019 on a borough-wide basis against various named defendants and “persons unknown”. No council had yet progressed its main injunction claim to a hearing. There were various reasons for this, not least Covid, a desire to wait for the decision in LB Bromley (EWHC [2019] 1675) and further cases this year, and the failure of the court to make case management directions to hurry the proceedings along. Various campaign group interveners sought to have the interim injunctions set aside for failure to progress the main injunction claims.

The claim for an injunction under s187B TCPA is made under Part 8 of the Civil Procedure Rules. It requires a claim, service, a defence, evidence, skeleton arguments and a full, often contested, hearing. This can take some time. There is provision in the rules for councils to seek an interim injunction, protecting the status quo until the main claim can be heard in court. As we discussed last month, at interim stage the council need only demonstrate the need to protect the status quo, the merits of the claim are not rehearsed. A practice had grown up (and had been tacitly accepted by the court) of councils stopping at the interim stage because the interim injunction often gives them most of what they need. The merits of the main claim are therefore never considered fully.  

When councils started asking for borough-wide injunctions against “persons unknown” (ie all members of the public) on this basis, the courts called a halt. Hackney (see last month), while not a planning case, is an example of the practical difficulties of evidencing and winning the main injunction claim. In these circumstances, to allow the merits of claims to remain untested is contrary to justice.

In this Havering case, Mr Justice Nicklin considered the councils’ various excuses for not progressing the cases to final injunction. For the most part, he rejected them as inadequate. Internal emails which should never have seen the light of day were examined in detail. The councils’ unilateral decision to await the Bromley decision was particularly criticised. That, in the end, the judge stopped short of discharging the interim injunctions was for two main reasons. First, that the court itself was complicit in the failures because it had granted such open ended interim orders and had not made case management directions requiring the main claims to be brought to court quickly. And second, that the situation should not arise in future as Bromley has now made councils fully aware of the court’s position on these injunctions. In the circumstances, the judge felt that the best approach for this case would be continue the order and require the councils to bring the main injunction claims to court expeditiously.

This is an exception. Councils should now be aware that

  • any interim injunction will require notice and a hearing; 
  • that it will be time limited, defendant limited (unlikely to cover “persons unknown”) and area limited;
  • that the evidence will need to be good enough to give the main injunction claim a chance of success;
  • that the main injunction claim will need be progressed quickly; and
  • that any delay or extension of time (even if sensible and/or agreed by the defendants) needs the court’s blessing.

There are consequences to this. Last week, we sought extension of a time limited interim injunction to allow a planning decision to be made, appealed and s289’d. The G&T families on the site had asked for it, since the alternative would have been to progress the main injunction which would have cost them money. The council consented. The extension was granted.  

On the face of it, this request is difficult to reconcile with the need to progress the main injunction claim. It will probably not now be heard for two years or more.  

It was also clear that the judge did not want to have to determine planning merits where there was an inspector to do it. But that is going to be the result of the court’s current push to see the merits of injunction claims heard quickly. One of the matters to be considered in an injunction hearing is the likelihood of planning permission being granted. Almost all G&T injunction cases have underlying planning applications which are under appeal or simply lying undetermined. Again, it is difficult to reconcile the court’s need for expeditious progress of injunctions with its unwillingness to reach a view on such a fundamental part of those injunctions.  

A final point to mention in the Havering case is the judge’s comments on evidence. He commented that Havering’s claim and evidence amounted to some 3,728 pages including 48 witness statements. While not stated, these were presumably from police officers, planning enforcement officers, housing and environment teams as well as witnesses dealing with site provision, GT needs assessments, welfare etc. The other councils had documentation of a similar magnitude. It is easy to see how this occurs. Each time there is an unauthorised encampment, officers attend and witness statements are generated. When it comes time to apply for the injunction, the witness statements are gathered together to evidence the problem. But, as a rule, the statements identify what happened, not who did it.  

The judge said that it was not reasonable and not fair to expect defendants to wade through such a lot of material, most of which could not be shown to be specifically related to them. Evidence of illiteracy (and digital illiteracy) was tabled. The councils were therefore instructed to identify, for each of the named defendants, the particular evidence relied on against each defendant.

Councils are between a rock and hard place when it comes to evidence. They need to demonstrate existing breach and apprehended further breach. They need to demonstrate that the breaches are unlikely to get permission. They need to demonstrate proportionality of the action which tends to involve factors like the previous actions of the defendants, adequacy of alternative site provision, welfare needs etc. They need to demonstrate that the decision to seek an injunction was taken properly. While 3,728 pages is perhaps excessive, that is not a 10-page job either. Particularly as the court will throw out the claim for lack of evidence (as Hackney found last month). Indeed, the Havering decision contains a prime example. Seeking to counter claims of illiteracy, counsel for the councils said that the named G&T defendants were “sophisticated people with businesses, who were using sites for commercial enterprises, and who owned “brand new Range Rovers” and “incredibly expensive caravans”. The judge responded “I cannot assess this submission, as I have not been shown the evidence…”

Roderick Morton is a partner at Ivy Legal.