Four councils have been found by the High Court to have engaged in an abuse of process relating to injunctions against travellers and a fifth has been severely criticised in cases where they showed “complacency, even insouciance”.
Mr Justice Nicklin said the London Borough of Havering, Nuneaton & Bedworth Borough Council, Warwickshire County Council and Thurrock Council had abused the court’s processes by failing to progress interim injunctions granted against ‘persons unknown’ and Rochdale Metropolitan Borough Council had also been dilatory in pursuit of a final injunction.
The judge was asked to decide whether interim injunctions granted to the five councils should be discharged on the grounds that their failures to progress the claims to a final hearing were an abuse of process.
He rejected the argument that the pandemic had prevented councils from pursuing the cases, noting: “The High Court has continued to function during the pandemic, quickly moving to remote hearings. There has been no ‘cessation' of hearings in the High Court.”
A particular concern of the judge was the way in which interim injunctions could be left in place without further reference to the courts but which bound ‘newcomers’ in addition to those originally affected. Only Rochdale’s interim injunction did not do this.
Nicklin J said: “Although I have found that the failure by LB Havering, Nuneaton and Bedworth BC and Warwickshire CC 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.”
His reasons were that the councils did not intend to abuse the court's process and all ultimately intended 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,” he noted.
The second factor was that there was not a clear authority warning parties in the councils’ positions that a failure to properly prosecute claims could be regarded as an abuse of process.
Nicklin J said a “better and more proportionate response” was to ensure that each was managed as expeditiously as possible to a final hearing and “I am satisfied that the finding of abuse of process against a local authority is a sufficient sanction”.
The judge was scathing about the conduct of the councils in leaving the interim injunctions in place long-term.
He said Havering and Thurrock had said they intended to go from interim to final injunction within “anywhere between seven months and one year”.
He said: “It is not clear to me…why such a lengthy period was necessary or thought appropriate.
Nuneaton and Bedworth and Warwickshire showed “insufficient urgency was being adopted by the council”.
Rochdale had “not provided in its evidence any contemporaneous documents demonstrating what it was doing in relation to the claim for 2½ years that could possibly have justified a delay of this order”, Nicklin J said.
The councils appeared to have decided to await the decision in LB Bromley, and then the outcome of its appeal “and then not to progress the case at all during lockdown”, he said.
Explaining further his decision on abuse of process, the judge said the councils “have each been guilty of serious failures properly to progress their respective claims to a final hearing.
“The explanations given for the delays are not adequate. The worst conduct is that of Rochdale MBC which allowed its claim to become dormant for over two years following the grant of an interim injunction.
“The delays in prosecuting their claim were substantial and have not been adequately explained or excused. Each local authority demonstrated a complacency, even insouciance, towards the need to progress the claim.”
Nicklin J said in May that he had grounds to suspect that, in a significant number of applications by local authorities for interim injunctions against ‘persons unknown’ targeting unauthorised encampments on land, there were material and serious breaches of the procedural requirements and the procedures of the court.