Sun Street Property Ltd v Persons Unknown

Without-notice injunctions are exceptional, but may be granted against persons unknown where immediate intervention is justified by a genuine and credible risk of further trespass or danger. A final possession order made after drastically abbreviated service remains vulnerable where notice is inadequate. The court should nevertheless consider the underlying merits before setting it aside. Where occupiers have later had a fair opportunity to present their case, setting aside is generally unnecessary if no substantial defence exists. Articles 10 and 11 of the Convention do not create a general right to occupy private property for protest, campaigning or socially beneficial activities. The relevant question is whether exclusion destroys the essence of the Convention right by preventing any effective exercise of it.

The claimant, a company in the UBS banking group, owned a large unoccupied commercial complex in the City of London. The defendants and other occupiers entered the property and established a community project and protest known as a Bank of Ideas.

On 18 November 2011 the court granted, without notice, an interim injunction restraining further entry, abridged service of possession proceedings to 45 minutes, and subsequently made a final possession order by telephone. The occupiers applied to discharge the injunction and set aside the possession order, relying principally on inadequate notice and on rights under Articles 10 and 11 of the European Convention on Human Rights.

1. Interim injunction. The injunction was not a device to circumvent the possession procedure in CPR 55. Separate possession proceedings had been commenced. Its distinct purpose was to prevent further entry and address a genuine safety concern in a large, long-unoccupied building. An injunction against persons unknown was permissible in accordance with Hampshire Waste Service v Persons Unknown [2003] EWHC 1738 (Ch) and the approach approved in Secretary of State v Meier [2009] UKSC 11. Although the injunction could have been worded more clearly, that did not justify discharge.
2. Possession order and notice. CPR 55 provides a special accelerated code, but the claimant must still take reasonable steps to give adequate notice, particularly where service is shortened to 45 minutes and the defendants are litigants in person. The shorter the notice, the more prominent the steps required. The notice here was grossly inadequate.
3. Setting aside and merits. The court was not required to set aside the order without considering the merits. The approach in Forcelux Limited v Binnie [2009] EWCA (Civ) 854 and London Borough of Hackney v Findley [2011] EWCA (Civ) 8 made the merits highly relevant. Since the applicants had later obtained legal representation, filed evidence and received a substantial hearing, and had no realistic defence, setting aside would have been technical and inconsistent with the overriding objective.
4. Convention rights. Assuming Articles 10 and 11 could be engaged in a dispute between private parties because of the court’s role as a public authority, Appleby v The United Kingdom [2003] 37 EHRR 38 required consideration of whether exclusion prevented any effective exercise of expression or assembly. The occupiers could campaign and communicate their views without occupying the property. Its usefulness as a platform did not justify overriding private property rights. Both applications were dismissed.