England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE PENRY-DAVEY)

		Royal Courts of Justice Strand London, WC2 Monday, 4 November 2002

4 Monday November 2002

1. LORD JUSTICE SCHIEMANN: Before me is an application for permission to appeal a judgment of Penry-Davey J, which was given on Friday, 8 July 2002 [2002] EWHC 1532(QB).
2. The factual background to the case is set out at length in the judgment and there is no advantage in my repeating it. There was originally an application by the Council for an injunction in relation to a site to which they anticipated that gypsies might seek to move. That injunction was granted and nothing further arises on it. However, in breach of that injunction some people moved on to the site a day or two later and started establishing gypsy caravans. This led to the Council, on 29 January 2002, applying, before issuing a writ, for a second injunction against various named persons and also persons unknown, inhibiting them from using the relevant land for stationing any further caravans.
3. Broadly speaking, the Council's interest in the matter was to enforce planning legislation; and they took the view that there were strong planning objections to the siting of these caravans there.
4. However, the gypsies did not move and so the Council took out a writ asking for a permanent injunction; indeed they took out two writs because they promised so to do, when seeking the interim injunctions. The interim injunctions meanwhile continued, but the Council agreed not to enforce those injunctions whilst the proceedings were pending in relation to the permanent injunction.
5. There then came before Penry-Davey J the application for the permanent injunction, as well as applications by the gypsies to discharge the temporary injunction. Before me the appellant gypsies are ones who were not named as such in either of the injunctions, but who appear as "persons unknown", which were people who were addressed in the second injunction, apart from various named persons.
6. The order which was finally made by Penry-Davey J was one granting the permanent injunction, but suspending its operation for two months in general, and four months in relation to a pregnant lady, in an endeavour to provide some more time for the gypsies to find a place to go. He did not expressly in his order deal with the applications to discharge or vary the injunctions which had been granted in January, but inevitably those applications must have been regarded by him as failing, and indeed he said so in the course of his judgment.
7. There was originally an application for permission to appeal in relation to the permanent injunction. Not against the decision to grant the injunction in principle; but it was suggested that the period of two months was inadequate in the light of what were alleged to be the appellants' rights protected by Article 8 of the European Convention.
8. On reflection, after this application had been refused on paper by Arden LJ, Mr Willers, who has been acting for the gypsies, concluded that he could not suggest that that appeal had any prospect of success in this court. He was, however, concerned with various comments which had been made by Penry-Davey J in the course of his judgment in relation to the interim injunction which had been granted on 29 January. That had been challenged before him on a number of grounds, all of which were rejected and most of which have not been subject of submissions in front of me.
9. However, there is one point which has caused concern, I am told in the gypsy community, and there is a fear that it might become a precedent. The learned judge dealt with the matter this way in his judgment in paragraph 47:

"Mr Willers ... submits that [the interim injunction] should be discharged because by the time it was granted the defendants had acquired rights under Article 8 of the European Convention and it was granted without consideration of those rights."

10. The learned judge looked through the leading judgment of the European Court, Chapman v United Kingdom, (2001) 33 EHRR 399, and various other cases which were considered in that case. The judge accepted a submission which was made on behalf of the local authority that the factual background to this case is that there had been a concerted and calculated occupation of the site during the weekend of 26 January 2002 in defiance of an injunction which had been granted, and in an attempt to avoid proper planning control and to establish Article 8 rights.
11. The submission made on behalf of the authority was that if there was no interference with Article 8 rights in seeking a court order to prevent occupation of the land, asking occupants to leave so quickly after such an occupation equally does not amount to any such interference; and the submission was that in all the circumstances no Article 8 rights were established when the claimants went back to court on 29 January.
12. That submission was accepted by the judge who said that, having regard to the concerted and calculated way in which the site was occupied, and the urgent steps taken by the claimant to end the occupation shortly after the move on to the land by some of the defendants, there was no engagement of Article 8 rights by the time of that application.
13. It is that assertion which Mr Willers wishes to challenge. He would submit that Article 8 is widely enough framed to require considerations of parties' family life and private life and their right to a home, even in circumstances such as at present, although he would concede that if one looks, as the court inevitably will, at Article 8(2) in circumstances such as the present, those rights may have to give way to other rights. But he says the judge's assertion that Article 8 rights were never even in play is one which is arguably wrong.
14. For my part, at a high level of abstraction, I would see that proposition as arguable in this court. But in the context of the present case I do not consider it would be appropriate to grant leave. For a start, the order made by Penry-Davey J does not actually deal with the application of 29 January, therefore there is some problem about this court's jurisdiction to deal with an appeal against part of an order which was never actually made and incorporated in the order.
15. Recognising the force of that, Mr Willers asked for permission to appeal out of time against the making of the order on 29 January, rather than against the failure of Penry-Davey J to discharge it on 5 July. That application is very much out of time. But in any event, as it seems to me, whilst points of principle may be potentially raised, in the circumstances of the present case there really is no genuine underlying quarrel as between these applicants and the authority in this sense, that of course the applicants would like to stay there, but they accept that they have no right so to do.
16. The Civil Procedure Rules describe in their very first paragraph a procedural code which asks the court to deal with a case justly, and says that that includes, as far as practicable, saving expense, dealing with the case in ways which are proportionate to the amount of money involved, the complexity of the case, the complexity of the issues, and allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases.
17. In the present case the gypsies cannot hope for themselves anything which will be the slightest use to them. They do not seek now an order that they be permitted to stay on the site; they do not now seek damages; there has been no argument as to the costs order made below. In those circumstances I think it right to refuse permission to appeal and I do so.
(Application refused; detailed assessment of appellant's publicly funded costs).