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Court dismisses application by council for injunction in London square over PSED breach

An interim injunction prohibiting people from congregating in a Westminster square has been discharged after the Central London Court found it was obtained unlawfully as Westminster City Council had failed to have due regard to its equalities duties.

In Westminster City Council v (1) Persons Unknown (2) Ernest Theophile (3) Michael Gill, Judge Baucher found that the claim had no real prospect of success as the council acquired the interim injunction unlawfully, having breached the Public Sector Equality Duty (PSED).

The defendants said the square, Maida Hill Market, is used by the community for social activities (including playing dominoes and backgammon), to share and participate in West Indian cultural traditions, and to provide informal support for those experiencing social isolation and mental ill-health.

Last month, the court declared that the city council was under a duty to comply with equalities law when they made an application for an anti-social behaviour injunction against Ernest Theophile and others who congregate at the square. The council had denied they were required to consider equality issues when they applied for the injunction, but the court rejected that argument and found that the council was bound to comply with the PSED

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Mr Theophile returned to court yesterday (24 June) to argue that the council's injunction application had no real prospect of success and should be dismissed. The council argued that although they had acted unlawfully, that could be remedied by conducting an equality impact assessment belatedly and prior to the trial listed for August 2022.  

The judge, in giving reasons for her summary judgment in favour of the claimant, agreed that the effect of her earlier decision was that the council had obtained the injunction unlawfully. She found that there were concerns about the way that the council had conducted the litigation and refused to permit late compliance with the equalities duties, some 18 months on.

Finding that the council's conduct had tainted the process and their claim had no real prospect of success, she determined that the unlawful breach could not now be remedied by a 'rearguard action'.  

In a statement responding to yesterday's decision, Mr Theophile said: "All we have ever wanted is a place where we can socialise together. The council's unlawful action against me has caused me stress and worry for 18 months and I am so glad and relieved it is all over."

Speaking about the impact of this injunction, Mr Theophile said: "The connections I make on the square are important to me, but I didn't want to be arrested and I certainly did not want to risk going to prison."

Mr Theophile's solicitor, Anne McMurdie, said: "Since the injunction proceedings were issued more than 18 months ago, there has been a complete failure by Westminster City Council to recognise and comply with the equalities obligations owed to the West Indian community. This ruling confirms the importance of councils taking seriously those obligations. We are delighted that once again Mr Theophile and others from the community can enjoy the public space they value, free from draconian interference backed up by the power of arrest."

A Westminster City Council spokesperson said: "We want Maida Hill market to be a safe and widely used public space that is welcoming for all, including those wishing to play dominoes. As a new administration we accept that the approach the council has taken has been wrong at times and we have already begun a review to identify a new approach and are committed to working with local residents."

It added: "In the meantime, we will also continue to work closely with the community and local police to tackle issues of anti-social behaviour where they occur and that have, at times, been a real cause of concern for many residents and businesses. We look forward to finding a solution that can hopefully work for all, including our support for the dominoes club as an important part of the community."

Adam Carey

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