Birmingham City Council v B & Ors

A local authority may seek an injunction under section 222 of the Local Government Act 1972 to assist in preventing a public nuisance, including drug dealing. The existence of other statutory powers does not remove that jurisdiction. Whether relief should be granted remains fact-sensitive and requires the usual discretionary and proportionality assessment. On an interim application, the court should apply the American Cyanamid principles, including the adequacy of damages and the balance of the risk of injustice. Relief may be confined or redrawn to minimise interference with the defendants’ rights and may properly continue pending authoritative clarification of the law.

The local authority sought injunctions excluding several defendants from parts of Birmingham, alleging involvement in Class A drug dealing and public nuisance. Interim injunctions were granted and later maintained. Following a judgment in Birmingham City Council v Shafi and Ellis, the case-management judge discharged the injunctions, doubting the jurisdiction under section 222 and questioning the strength of the evidence.

Permission to appeal was granted on the issue whether the judge had jurisdiction to grant the injunction. By the hearing, the appeal concerned three respondents and the local authority sought only more limited exclusion zones.

1. Appeal allowed in part. The case-management judge had erred in principle by doubting the jurisdiction to grant an injunction under section 222. Nottingham City Council v Zain established that a local authority could seek such relief to restrain a public nuisance, including drug dealing, where it considered proceedings expedient for promoting or protecting the interests of inhabitants. That decision was binding and was not merely academic or confined to its facts (paras [15]–[23]).

2. The existence of more recent statutory powers, and the criticism that a section 222 injunction could be a blunt instrument, did not permit a first-instance judge to decline to follow the binding Court of Appeal authority. Any reconsideration or confinement of that authority was for the Court of Appeal (para [23]).

3. The court re-exercised its discretion under the American Cyanamid principles. There was a serious issue to be tried. Damages would have been adequate for the respondents if the injunctions proved wrongful, but would not have adequately compensated the local authority if relief were refused and later shown to have been necessary (para [34]).

4. The balance of convenience, more properly described as the balance of the risk of injustice, favoured continuation. The evidence of drug dealing and the beneficial effect of the injunctions were powerful. The reduced exclusion zones addressed nearly all specific complaints and made the relief proportionate (paras [24]–[36]).

5. Unverified information about a separate covert police operation, introduced through counsel’s submissions without formal evidence or an opportunity for response, had to be treated with considerable caution and could not properly displace the evidence supporting relief (paras [27]–[29], [36]). The limited injunctions were granted until the review hearing following the Court of Appeal’s decision in Birmingham City Council v Shafi and Ellis (para [37]).

• High Court (Queen’s Bench Division): Allowed the appeal to the limited extent necessary to reinstate reduced exclusion-zone injunctions pending review.
• Birmingham County Court: Interim injunctions had been granted and maintained. On 2 April 2008 Judge MacDuff discharged them for the remaining defendants, relying in part on doubts about the section 222 jurisdiction and the evidence.
• Permission to appeal: Macur J granted permission on the arguable issue whether the lower court had jurisdiction to grant the injunction.