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Phoenix from the flames

By J

There was an interesting case-note on Lawtel this week which I suspect most of you saw. The case was LB Enfield v Phoenix and others, High Ct, March 19, 2013, and seemed to concern the circumstances in which a possession claim can properly be issued in the High Court. I have been provided with a note of judgment and so can give you a bit more detail.

Imagine, if you will, that a large number of the good people of North London are, to put it mildly, somewhat dissatisfied with the Tory/Lib Dem cuts to public expenditure (a view, I should add, which is plainly shared by all right-thinking people). One aspect of the cuts is that many local authorities, including LB Barnet, have reduced their library services. Well, these fine people weren’t prepared to stand for this and occupied one of their local libraries, and, as I understand it, although a possession order was granted against them, the local authority and the occupiers have now reached an agreement to ensure that the library stays open, albeit with significant volunteer involvement (see here, for example).

At least some of the “guerrilla librarians” (as I will call them, because I like the mental imagery) then moved on to occupy other property, including  a non-residential property in Enfield which was owned by LB Enfield.

As one might have expected, Enfield issued possession proceedings in the Barnet County Court. They were seeking an interim possession order. Regrettably (for them at least), something went wrong at Barnet CC. According to the note of judgment, there were unspecified procedural irregularities which led to the claim being dismissed. It also seems that the council, although represented at court, failed to appreciate that the case had been called on and, presumably, this meant that no-one appeared for the council. And so the claim was dismissed.

Enfield LBC then decided to issue fresh proceedings. In the High Court. This is relatively unusual. CPR 55.3 generally requires a possession claim to be issued in the court for the area where the land is situated. Claims can be issued in the High Court, but there needs to be something “exceptional” about the case (CPD PD 55, para.1.1). In the case of a claim against trespassers there needs to be “a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination” (CPR PD 55, para.1.3).

Both the judge and the first defendant (represented pro bonoby the marvelous Emily Wilsdon, and instructed by the well-known housing law nut, Giles Peaker) took the point that, well, the claim didn’t come within the scope of the practice direction. For Enfield, it was said:

(a) that the occupiers were raising human rights defences under Arts.10 and 11, ECHR which involved complex issues of law; and,

(b) there was a risk of disorder at the eviction stage.

HHJ Reddihough was having none of it. The defences were well within the competence of a Circuit or District Judge to deal with (which must be right – there are quite a few judgments on this issue, e.g. here). The Practice Direction required an immediate, present and/or substantial risk. The possibility of future risk was insufficient. There was no evidence to suggest that the occupiers posed any such risk nor was there even any likelihood of such a risk occuring.

The appropriate order was to transfer the claim to the Barnet County Court. As to costs, the costs of issuing in the High Court and certain costs of attending the hearing were ordered not to be recoverable by Enfield, regardless of the results of the trial. And, as counsel and solicitor had acted pro bono, Enfield were ordered to pay £500 to the Access to Justice Foundation.

For those who want a slightly more sober write-up, see here and here. Aside from my amusement, there is actually a useful practice point in here about the (very limited) circumstances in which a possession claim can properly be issued in the High Court.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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