18/12/2011

Money can’t buy you everything

Sun Street Properties Ltd v Persons Unknown [2011] EWHC (Ch), [2011] All ER (D) 72 (Dec) [no transcript available yet]

Or, what the hell is going on about Occupy/Bank of Ideas and the property owned by Union Bank of Switzerland. As you probably noticed, on 18 November 2011, an empty property in the City was occupied by a group connected with the OccupyLSX camp outside St Paul’s. The property was ultimately owned by the UBS, the ones who allegedly just lost some $2.3 billion through a rogue trader.

At the time, I predicted that UBS (or rather their subsidiary, Sun Street Properties Ltd) would go for an interim possession order very rapidly. As it turns out, I was wrong. However, working out exactly what it was they did do is not straightforward, not least because DLA Piper (for it is they) appear to have made a complete horlicks of it.

From the High Court hearing of the occupiers’ appeal, on 7 December, and via other sources, it appears that what happened is as follows.

On the evening of 18 November, UBS issued a claim and an application for an injunction. Quite what the claim is for remains unclear, but it appears to be a claim for possession. There was no IPO application. The injunction was sought on grounds of health and safety, including the risk of “the spread of communicable diseases in the complex containing hundreds of rooms that had been vacant for a number of years.”

At 9.06pm, a hefty claim bundle was served on the occupiers at the property. At 9.18pm a text message was sent to the mobile number given by the occupiers saying that there would be a hearing of the claim at 9.45pm. The text did not say where the hearing would be.

A telephone hearing between a QC for UBS and Mrs Justice Proudman, at home, took place at 9.45pm and a final injunction and final possession order was granted.

Why then can this be described as a foul up by UBS lawyers? Because it leaves such a huge and blindingly obvious route for appeal. An appeal was duly made on the basis that the basic civil procedural rules had been flouted, there had been no opportunity for a fair trial and the occupiers’ Art 10 and 11 rights had not been considered.

The hearing took place on 5 December. Mr Justice Roth was not impressed by UBS’ arguments that the procedure was perfectly all right. They had, they insisted, even stationed some poor DLA Piper paralegal outside the “shuttered court near the Strand” in case the activists showed up (I have visions of the poor paralegal clutching a ‘golf sale’ style placard, but I doubt it). The occupiers presented evidence that health and safety concerns had been dealt with the first night, there had since been electrical inspections, and the building was being used by community groups and University professors.

However, while Roth J accepted that procedure was not followed, he declined to overturn the injunction and possession order on the basis that a possession order would have been made in any event and that the interests of the overriding objective went against setting it aside. The argument that Art 10 and 11 bit on private land was not accepted.

UBS had been pushing for a decision on the day, 5 December. When Mr Roth reserved judgment until 7 December, it came out that UBS had, perhaps a little over ambitiously, booked a police slot for clearing the building on 6 December.

Mr Roth also gave permission to appeal to the Court of Appeal. The appeal was made on 7 December and a further stay of possession given pending hearing. It looks like a permission hearing is down in front of Lloyd LJ in the afternoon of 19 December [thanks Bill in the comments].

So there we are. DLA Piper’s approach has managed to turn what may have been a relatively straightforward possession process into a Court of Appeal case, principally, if not exclusively, on the basis of their attempts to short cut procedure. Well done.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

13 Comments

  1. Bill Ellson

    Mon, 19 Dec 2011 COURT 72

    Before LORD JUSTICE LLOYD Not Before 2 o’clock APPLICATION
    A3/2011/3166 Sun Street Properties Limited -v- Persons Unknown.
    Application of Defendant for permission to appeal and a stay of execution.

    Reply
  2. Patrick Torsney

    Thanks for this, NL. Great to see things like this get hung out on the line to dry so adroitly. Perhaps DLA Piper were looking for a “quick kill” and didn’t pay it the attention it deserved? Or, they were just poor shoddy corporate lawyers not used to getting down-and-dirty with some real litigation? Either way, I imagine they were/are concerned (understatement) that things might escalate and media attention be gained in the process – they’ve blown that one then

    You never know though… perhaps we shouldn’t discount the possibility that there are forces within DLA Piper that are, in some small way, sympathetic?

    Now, there would be a thing… ;-)

    P.S. Thanks also to Bill for the info on listing

    Reply
  3. Patrick Torsney

    Just noticed, there’s also the City of London Corporation vs. Occupy London case tomorrow, at high noon in the RCJ too. According to the info in the link below, this particular hearing will be held in front of Mr Justice Lindblom in court 25

    More info here: http://bit.ly/udFSRJ

    A big day

    Reply
  4. S

    Maybe they’ve been following what Grant Shapps has been sayin about how impossible it is to get rid of trespassers and decided to shortcut the usual processes entirely?

    Very odd. They’d have got an IPO on, say, 25 November (and that would be with the courts acting slowly) and the protestors would have been out shortly afterwards. Any (poor) defence would have to have been run out of the property and so they probably wouldn’t have bothered.

    As your title suggests, in this case they’d have been better off going to the high street for their legal advice.

    Reply
  5. Harrods

    DLA Piper told the High Court the reason they didn’t want an IPO is that they were also seeking an injunction restraining future trespassers entering the property; I think their true reasoning was that (judging by the High Court precedents they included in their authorities bundle) other High Court judges have been giving out injunctions against potential trespassers with only the very most gentle judicial scrutiny.

    Reply
    • NL

      Interesting.

      Utter nonsense, surely, on the argued injunction point. No reason they couldn’t seek one alongside an IPO. I suspect your suspicion as to true reasoning may be right, but what authorities did they include?

      Mind you, an injunction against potential trespassers would be pretty useless wouldn’t it? As per Wilson LJ in Drury v the Secretary of State [2004] 1 WLR 1906
      “It is enforceable by committal; and it would be wholly impracticable for the claimant to seek the committal to prison of a probably changing group of not easily identifiable travellers, including establishing service of the injunction and of the application.”

      Reply
      • Harrods

        Reliance was put on CPR 55.21(1)(a).

        Sun Street’s authorities generally: School of Oriental and African Studies v Persons Unknown, HC, 2010; and Hampshire Waste, approved by the SC in SS v Meier.

        Reply
        • NL

          So SOAS on the Art 10 & 11 issue. But that is also precedent for Art 10 & 11 biting on private land (even if ‘exceptionally’).
          I’d say it was stretching it a bit to say that Hampshire Waste was approved by the SC in SS v Meier, but as per quia timet injunctions against persons unknown, that Meier, yes.

          CPR 55.21(1)(a) – well, I suppose so, though I’d taken that as excluding an accompanying damages claim. An injunction is not a claim per se? But no need for an injunction if IPO made? I continue to suspect that they just bodged it up.

    • Bill Ellson

      “DLA Piper told the High Court the reason they didn’t want an IPO is that…”
      Unless anybody has seen any realistic evidence that the claimants were both regularly checking up the property and recording that they had done so, there must be a suspicion that they are simply not in a position to seek an IPO.

      Reply
  6. NL

    I’ve been told that permission to appeal to the Court of Appeal, and a further stay, was granted this afternoon (19/12). Permission given on procedural error and articles 10 & 11 as a potential defence to private possession proceedings.

    It appears that UBS legal representatives were not happy.

    Reply
  7. Rudy

    Didn’t DLA Piper think of a Warrant of Restitution instead of their unenforceable and unawardable injunction against these unnamed and unidentifiable persons? It’s surely so straightforward that the local CAB could have advised their client to get one of those – though it’s so much more fun to prefer the theory that there are Forces Acting Within that dark army, who are Having A Laugh at the expense of their top-hatted decadent toff clients. i also wonder just what observance the silk who represented them on the phone to the duty High Court Judge paid to the uberrimae fidei total disclosure duty owed to the Court on without-notice applications

    Reply
    • NL

      Rudy

      Not sure that the injunction was unawardable (Both SOAS and Meier go the other way), but unenforceable? Perhaps.

      Reply

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