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.