Karkut & Ors, R (on the application of) v London Borough of Lewisham

In an urgent judicial review application, interim relief will ordinarily provide sufficient protection. The court should not normally grant permission merely to hold the position while urgent relief is required. Permission and any question of setting aside should generally be dealt with later.

An acknowledgment of service is discretionary. The court should not direct a defendant to file one within a specified period or impose sanctions for failing to do so.

A local authority may ordinarily recover possession from squatters occupying premises required for an approved redevelopment scheme. Even if Article 8 is arguably engaged, a clear notice inviting occupants to contact the authority will generally satisfy any obligation to consider individual circumstances. The authority need not undertake disproportionate inquiries into unknown occupants.

The claimants were squatters occupying vacant flats on a council estate undergoing an approved redevelopment scheme. The council began possession proceedings in the county court. An application to adjourn those proceedings was refused, following which the claimants sought urgent judicial review.

Henriques J granted interim relief and permission to proceed. The order stayed the practical effect of the possession proceedings and required an acknowledgment of service. The council applied to set aside that order and to refuse permission.

The issues were whether the urgent application had been procedurally managed correctly, whether Article 8 could be engaged by unlawful occupation, and whether the council’s decision to seek possession was unlawful, irrational or disproportionate.

1. Procedural relief. Where urgent protection is required, an interim order will ordinarily be sufficient. It is generally inappropriate to grant permission at that stage merely because an urgent holding order is needed. The application for permission should be left to be considered in the ordinary way.
2. Acknowledgment of service. CPR 54.13 does not justify directing a defendant to file an acknowledgment of service by a specified date, or at all. Whether to file one, and when, is for the defendant. The court may abridge the ordinary period only where genuine urgency requires it.
3. Setting aside. Following Webb v Bristol City Council [2001] EWHC Civ 696, CPR 54.13 does not exclude the court’s inherent power to set aside its own order where the interests of justice require it. The order granting permission was made unnecessarily and in error having regard to its terms. It was set aside.
4. Arguability. The court considered whether the claim was arguable. If it was, it could proceed; if not, permission should be refused. The claimants’ Article 8 argument was sufficiently arguable at the preliminary stage to avoid being ruled out solely because their occupation was unlawful, although the judge expressed grave doubts about whether squatters could thereby establish Article 8 rights to a home.
5. Substantive challenge. The council’s redevelopment scheme had been properly approved and required the premises to be cleared. The claimants were trespassers with no lawful right to occupy. The council’s August 2004 letter gave clear notice, warned of possession proceedings and invited contact. Even assuming a duty to consider the occupiers’ circumstances, the council was not required to undertake extensive inquiries into unknown squatters. The possession decision was neither unlawful nor disproportionate within Article 8.
6. Order. The council’s application was allowed. The grant of permission was set aside and permission to move was refused. The usual costs order was made.

This was a first-instance judicial review decision. The judgment records that Henriques J had previously granted interim relief and permission, but that order was set aside by Collins J.