England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London WC2A 2LL
		7 December 2011

MR JUSTICE ROTH:

1. There are two related applications before the court. Both concern the occupation by the applicants and others of a large commercial complex of buildings in the City of London, north of Finsbury Square. It is bounded by Sun Street, Clifton Street, Earl Street and Wilson Street. I shall refer to it as "the Property", and I shall refer to those who are currently occupying the Property by the way they have described themselves before the court, as "the Occupiers". The Property is owned by the respondent to the applications (the claimant in the underlying proceedings). The claimant is a company in the UBS banking group.
2. On 18 November 2011, in circumstances to which I shall return, the court made three orders: first, an interim injunction restraining trespass on the property; secondly, an order abridging to 45 minutes the time for service of proceedings for possession; thirdly, a final order for possession of the property. These applications seek to set aside the injunction and the possession order.
3. The Occupiers have established on the Property what they call a "Bank of Ideas" and, as explained in their evidence and expanded at the hearing, this involves the establishment of a community project in the property with various activities and also, more particularly, they seek to draw attention to what they claim is the inequitable use of resources and the commercial practices of UBS as a major bank. I should, therefore, make clear at the outset that the court is not expressing any view as to whether these opinions of the Occupiers or their political and social objectives are well founded or mistaken, or as to whether or not these views deserve support. The concern of the court (and the only concern of the court) is with legal rights of, respectively, the applicants and the respondent.
4. The application to set aside the injunction was issued on 21 November and came before me in the Applications List on 28 November, when the applicants appeared in person. The court was addressed by Mr Peter Phoenix on behalf of himself and his colleagues, and he asked that the matter be adjourned to enable them to arrange for legal representation and to file evidence. Despite some resistance by the respondent, I acceded to that request and also directed that the second application, which was issued on 24 November, seeking to set aside the possession order, be stood out to come on at the same time, namely the afternoon of 5 December. At the outset of the hearing on 5 December, at his request and with the consent of the respondent, Mr Nicholas Scott was added as an applicant. Mr Stephen Knafler QC and Mr David Renton of counsel appeared instructed by Bindmans, I think formally on behalf of Mr Smith, but effectively for the applicants in general. But Mr Phoenix continued to represent himself and he also addressed the court. Miss Katherine Holland QC appeared (as she has throughout) for the respondent, now with the assistance of Jonathan Wills of counsel, instructed by DLA Piper.

The events of 18 and 19 November

5. In the early hours of Friday, 18 November, a large number of persons, including the applicants, gained access to the property, which was unoccupied. They placed notices around the property, one of which reads as follows:

"To whom it may concern.

We are a Community Arts collective.

Having noticed this building has been empty for an extended period, we have occupied the property to set a community project and an exhibition.

We have begun tidying and repairing the space, and assessing health and safety requirements. Preparations are being made for a number of community project uses.

We are prepared to discuss our interim use of the space, as this property is unused we feel a community project would be of great benefit to the people and the area.

We are caretaking the space until further notice. We are always willing to negotiate and discuss various options.

There may not be a need to go to court as we hope a mutually beneficial arrangement can be agreed. If you would like to contact us you can do so on the following number. Tel [mobile number provided].

Please provide our Legal observers with a contact for your organisation.

This project is being filmed for a documentary on community regeneration."

The other notice was headed prominently "LEGAL WARNING" and began:

"TAKE NOTICE

That we live in this property, it is our home and we intend to stay here."

The notice then continues:

"If you want to get us out you will have to issue a claim in the County Court or in the High Court or produce to us a written statement or certificate in terms of S.12A Criminal Law Act, 1977."

The reference to section 12A is to a statement by someone intending to occupy premises as their residence.

6. At about 6.45 p.m. on 18 November the respondent sought and obtained an urgent "without notice" interim injunction. The application to the court was supported by a witness statement from Mr Duncan Freeman of the respondent's solicitors, which exhibited reports about the occupation of the building and stated that "Due to the numbers likely to attend" the respondent had concerns about financial damage to the Property and as to the welfare and safety of those coming onto the property, referring, among other things, to the state of the electricity and gas on the Property, as they had not been tested for some time, and similarly the state or condition of the lifts. That application was made against persons unknown entering or remaining on the Property, and the resulting injunction prohibited such persons from entering or remaining on the land. In the same hearing, the respondent placed before the court a claim form, seeking an order for possession under CPR 55, and obtained an order abridging time for the service of possession proceedings to 45 minutes. The court ordered that service may be effected by fixing the order and documents to conspicuous places around the Property.
7. At about 9.10 p.m. a process server then fixed around the Property some ten bundles of documents, which he states comprised the following:

1. A claim form for an injunction.

2. An order for injunction.

3. An application for an injunction.

4. A claim for possession.

5. An application to abridge time.

6. A certificate of reasons.

7. A draft order for possession.

8. The first witness statement of Mr Freeman with its exhibit.

8. At about 9.15 p.m. Mr Freeman sent a text message to the mobile number which appeared on the Occupier's notice (to which I have referred) and which stated:

"To whom it may concern.

Further to the occupation today by Occupy London of the former UBS building, this text is to inform you that an injunction order has now been granted on 18 November 2011 to restrain the trespass together with ancillary orders and a copy of this injunction has been posted at conspicuous places around the Property."

9. At around 10 p.m. the respondent's legal team assembled outside the Rolls Building in Fetter Lane, and from the street rang Proudman J to proceed with its possession application. No one attended from the applicants or the Occupiers. The judge proceeded to hear the application over the telephone, and made an order requiring the defendants or respondents to that application (the present applicants and Persons Unknown) to give up possession forthwith. Miss Holland told the court, and I of course accept, that Proudman J had made it clear that if anyone had attended on behalf of the Occupiers, the judge would not have conducted a hearing by telephone, still less where the parties were in the street, and had indicated that she would then make arrangements for a hearing in her presence to take place either that evening or the next day.
10. The possession order was not served or indeed notified to the Occupiers that evening, or indeed the next morning. It was served, again by being fixed to the Property, at about 10.40 p.m. the next day. That being a Saturday, the order was unsealed and a further sealed copy was served subsequently, in fact only during the evening of Tuesday 22 November.

The present applications.

11. I consider that there are important differences in the approach to be taken to the interim injunction and the possession order, and I shall consider them separately.

(a) The Interim Injunction.

12. At the forefront of his submissions seeking to discharge the injunction, Mr Knafler submitted that it should not have been granted without notice. He stressed that without notice injunctions are exceptional and should be used only where immediate intervention by the court is required, referring to the well-known passages in the Court of Appeal decision in Moat House Group-South Ltd v Harris [2005] EWCA (Civ) 287, [2006] QB 606. He said that the respondent could have contacted the Occupiers on the telephone number provided during the day on 18 November and drawn any alleged health hazards to their attention. Further, the legislative scheme for acquiring possession was by the procedure in CPR 55, and a without notice injunction should not have been used for that purpose.
13. However, I consider that it is clear that here the interim injunction was not being used as a means of circumventing CPR 55 and obtaining possession. That is evident from the fact that, at the very same time, separate possession proceedings were commenced and an application was made for an abridgement of time for service of the claim for a possession order. The distinct purpose of the injunction was to stop more people coming onto the Property and a genuine concern about their safety, given that this was a large building complex that had been unoccupied for a considerable period. The respondent could not know how many more people might seek to occupy the building, and produced to the court as an exhibit to Mr Freeman's witness statement a report from a newspaper website on 18 November which quoted one of the Occupiers, who said:

"We've got more people joining us from the rest of the UK and Ireland tomorrow."

It was not suggested in argument before me that this report was inaccurate. The injunction was an interim injunction to restrain such entry. Therefore, understandably and in my view very properly, it was against persons unknown. It followed the clear precedent established in the judgment of Sir Andrew Morritt (then Vice Chancellor) in Hampshire Waste Service v Persons Unknown [2003] EWHC 1738 (Ch), [2004] Env LR 9, and effectively approved by the Supreme Court in Secretary of State v Meier [2009] UKSC 11 [2009] 1 WLR 2780 per Lord Rodger at para 2. As Lord Neuberger observed in the same case at para 83, in some cases it may be appropriate to grant an injunction where the court considers it could have a real deterrent effect.

14. I think that the injunction in this case could have been more appropriately worded to make clear that it was directed at further entry onto the land and not to those already in occupation at the time it was served, an issue that did not arise in the Hampshire Waste case, but I do not think that in the circumstances here that is a ground now for setting it aside. Therefore, the fact that the Occupiers may themselves take various steps to make the Property safe was not directly relevant in the circumstances of the evening of 18 November. In any event, on the applicants evidence, it was only on 19 November and then further on 22 November that a health and safety officer who wished to assist them made a thorough check of the building, and as regards the electricity on the Property, only on or after Wednesday 23 November did an electrician attend at the Property to assist the Occupiers by commencing safety checks, which were completed by a second visit on 29 November.
15. It is not necessary to resolve the issue between the parties as to whether the Property is now safe, because that does not go to the justification for a without notice application on 18 November. This was an interim injunction, including the usual provision enabling an urgent application to discharge it, in this case on 12 hours' notice. The applicants indeed promptly applied to discharge the injunction, pursuant to that provision. And as for the position as it stands today, the matter is effectively subsumed in the possession order. If the respondent is entitled to possession, then I consider it is entitled to an injunction where there is a credible threat that more people might otherwise come onto the Property.

(b) The Possession Order

16. The possession order is a final order and, in my view, it involves different considerations. As I have mentioned, it was made at about 10 p.m, which is unusual for an order of that kind, certainly as regards a commercial property. The CPR incorporate in Part 55 what is in effect a special procedural code for possession claims, which was introduced in 2001. Because of the particular problems caused by trespassers, this includes a particularly accelerated procedure for possession claims against trespassers. CPR 55.5 states:

"(1) The court will fix a date for the hearing when it issues the claim form.

(2) In a possession claim against trespassers the defendant must be served with the claim form, particulars of claim and any witness statements –

(a) in the case of residential property, not less than 5 days; and

(b) in the case of other land, not less than 2 days,

before the hearing date."

The Rule adds a cross-reference to CPR 3.1(2)(a) whereby the court can extend or shorten the time for compliance, which is, of course, what the court did here.

17. CPR 55.8 provides:

"(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may –

(a) decide the claim; or

(b) give case management directions.

(2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated."

18. The circumstances in which the court should abbreviate the already short times set out in Rule 55.5(2) are set out in the practice direction to Rule 55, PD55A at paragraphs 3.1 and 3.2:

"3.1 The court may exercise its powers under rules 3.1(2)(a) and (b) to shorten the time periods set out in rules 55.5(2) and (3).

3.2 Particular consideration should be given to the exercise of this power if:

(1) the defendant, or a person for whom the defendant is responsible, has assaulted or threatened to assault:

(a) the claimant;

(b) a member of the claimant's staff; or

(c) another resident in the locality;

(2) there are reasonable grounds for fearing such an assault; or

(3) the defendant, or a person for whom the defendant is responsible, has caused serious damage or threatened to cause serious damage to the property..."

19. It is not clear whether the court's attention was directed to those provisions of the practice direction at the first hearing on 18 November. They are not referred to in the skeleton argument for the claimant produced to Proudman J at that hearing. In any event, the judge was persuaded to abridge the two days provided for in rule 55.5, although it is clear that the particular circumstances to which attention is drawn in those paragraphs of the practice direction do not apply. She was persuaded to permit the accelerated period of 45 minutes for service, presumably because of what was said in the witness statement about the potentially dangerous state of the Property.
20. The applicants submit that they received no effective notice of the second hearing which led to the possession order, and thus had no opportunity to put their case to the court. Miss Holland sought to refute that submission by pointing to the court telephone number which appears on the injunction order that was in the papers fixed to the Property with the documents concerning abbreviated service in the possession claim. She said that this was the court's out of hours number, which the applicants could have telephoned for information. The same point, in effect, is made in Mr Freeman's third witness statement. It is incorrect. The telephone number given is that of the Chancery Associates, whose office shuts at 5 p.m. If the applicants had rung that number at 9.15 p.m, they would have had no answer.
21. Secondly, it was said that the applicants could have contacted the respondent's solicitors, DLA Piper, whose telephone number and reference appears in the injunction at paragraph 6. However, it is necessary to bear in mind that the documents affixed to the Property at 9.10 p.m. comprised about 100 pages. The suggestion that litigants in person can be expected to work their way through that volume of documents in a very short timeframe and identify the solicitors' contact details buried away among them is, in my view, wholly unrealistic, even if it should be assumed that the applicants would have appreciated that DLA Piper's offices would still be open at that time of the evening.
22. Finally, it was submitted that neither the court nor the provisions of CPR 55 required any other form of service. In my view, that submission is fundamentally misconceived. The form of service of a possession claim is indeed specified in Rule 55.6, but it is the obligation of the claimant seeking relief, especially when it has the benefit of professional solicitors and the party against whom relief is sought are litigants in person, to take reasonable steps to give them adequate notice. What is reasonable and adequate is dependent on the circumstances. It should be self-evident that the shorter the period of notice, the more prominent the steps that have to be taken to bring the matter to the other party's attention. Here, the only indication that the time for service had been abridged to 45 minutes was to be found included within a bundle of some 100 pages of documents, and there was no information as to when and where the hearing was to be held that same evening. It is striking that although the respondent's solicitors sent a text to the telephone number of the Occupiers with details of the injunction, they did not send any similar message providing details of the second hearing that would seek a final possession order. Nor was any telephone call made to that number to inform the Occupiers of the time of the hearing and how they could attend. Nor did the documents include the out of hours number on which the Occupiers could contact the Royal Courts of Justice to discover what was happening – see the Chancery Guide at para 5.42(2) – or the telephone number of Proudman J's clerk, with whom the respondent's legal advisers were presumably in contact. Nor was any covering letter or note included with the large bundle of documents drawing any of these matters prominently to their attention. I am not suggesting that all these steps should have been taken, but what makes the position profoundly unsatisfactory is that not one of these elementary steps was taken. In short, I regard the notice given by the respondent to the Occupiers and hence to the present applicants as grossly inadequate for an application of this nature.
23. I note also that the claimant apparently did not serve Particulars of Claim, in accordance with Rules 55.4 and 55.5(2), but Mr Knafler did not take any point on this, and here the claim form sets out fully the matters that would be found in a Particulars of Claim. What Mr Knafler does submit is that, in consequence of the short and inadequate notice given to the Occupiers, the possession order should be set aside without any consideration of the merits. He argued that the matter should be approached under CPR 3.1(2)(m), or, alternatively, subparagraph (7), and not under Rule 39.3, so that there was no need for the applicants to show any defence. He pointed out that CPR 39.3 applies for an application to set aside after a trial, and in this case it was common ground that there had not been a trial. And he submitted that, if the court were to go into the merits and allow the possession order to stand if it felt that the applicants had no defence, that would stand the proper procedure on its head, since it would mean that an applicant could obtain a possession order on no notice at all, and then uphold it unless the respondent could show a defence.
24. However, in my view, the position is not so simple, and every case has to be considered on its own circumstances. Whether or not CPR 39.3 should be applied by analogy when this case is looked at under CPR 3.1, or whether, as I suggested to the parties, CPR 23.11 may be the more appropriate provision to apply in the present case, I consider that the underlying merits cannot be dismissed as irrelevant. In the Court of Appeal decision in Forcelux Limited v Binnie [2009] EWCA (Civ) 854, which concerned an application by a tenant to set aside a possession order where he had not received notice of the proceedings, the court made clear that the main factor in favour of granting his application to set aside the order was that the tenant had a very strong case on the merits – see paragraph 67 of the judgment of Warren J. This was emphasised in the subsequent Court of Appeal decision of London Borough of Hackney v Findley [2011] EWCA (Civ) 8, where Arden LJ, giving the lead judgment, said at para 24:

"…in the absence of some unusual and highly compelling factor as in Forcelux, a court that is asked to set aside a possession order under CPR 3.1 should in general apply the requirements of CPR 39.3(5) by analogy."

In the Hackney case there was the added consideration that the possession order had been executed, which is not the situation here.

25. Thus, even if some "unusual and highly compelling factor" applies, such that showing a good defence is not an absolute requirement for setting aside the order, it will be a very relevant consideration. In particular, I think it is appropriate to ask what would have happened if no order for abbreviated service had been made. Pursuant to Rule 55.5(2), the Occupiers would then have had two clear days' notice before a hearing. At that hearing they could have requested more time to arrange legal representation and put in evidence. I shall assume, in their favour, that such time would have been granted. But, as matters stand today, the applicants had more than two clear days between their learning of the possession order on 19 or 20 November and the first court hearing on 28 November. At that hearing they requested an adjournment to arrange for legal representation and to put in evidence, which application was granted. When the matter came back before the court on 5 December, the applicants were rerpresented by leading and junior counsel, who had put in a full skeleton argument, and the applicants had also served two witness statements addressing the other side's evidence. Although the matter was in the general applications list, the court sat late and the oral argument lasted over three hours.
26. In those circumstances, even in the absence of authority binding on this court, to set aside the possession order without consideration of the merits would be to take a very technical approach. The respondent could immediately re-issue an application and in a few days' time the matter would come on for hearing, when exactly the same arguments on the merits as were addressed to me would be heard all over again. That cannot be an appropriate or sensible course, having regard to the overriding objective that cases should be dealt with so as to save expense, expeditiously and fairly. The judgment of the Court of Appeal in Tombstone Ltd v Raja [2008] EWCA (Civ) 1444, to which my attention was drawn this morning shortly before delivery of this judgment, does not in any way lead to a different conclusion – see, in particular, the judgment of the court at paragraphs 83-85. Of course, fairness means that, if the applicants have shown apparently substantial grounds of defence such that a fuller hearing with more evidence is justifiable, then such a hearing would have been directed under rule 55.8(4), and the possession order should then be set aside so that the proceedings can take that course. But this takes me to the question: what are the grounds on which the applicants seek to oppose the respondent's claim for possession?
27. Mr Knafler relies on articles 10 and 11 of the European Convention on Human Rights. These 10 provide:

"Article 10

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such…restrictions…as are prescribed by law and are necessary in a democratic society, in the interests of…the protection of the reputation or the rights of others…

Article 11

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others…

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society…or for the protection of the rights and freedoms of others…"

Both these rights are, accordingly, qualified rights, as is the respondent's property right under article 1 of the First Protocol. Hence, Mr Knafler's and Mr Renton's skeleton argument submits at para 33:

"In this case…the court is to balance the claimant's right to peaceful enjoyment of its property, found at Article 1 of the 1^st Protocol ECHR and the applicants' rights to freedom of expression and assembly, at Articles 10 and 11 ECHR. Both the claimant's and the applicants' rights are qualified, rather than absolute, rights."

28. I shall assume, without deciding, that, although the respondent is obviously not a public authority within section 6 of the Human Rights Act, the obligation on the state positively to protect the exercise of individual rights from interference by others means that articles 10 and 11 could be engaged by the decision of the court as a public authority to make a possession order.
29. Both sides agree that the governing principles are set out in the judgment of the European Court of Human Rights in the case of Appleby v The United Kingdom [2003] 37 EHRR 38. There, the applicant sought to set up two stands in a shopping mall known as the Galleries, which formed the town centre at Washington in Tyne and Wear, in order to seek signatures from the public for a petition protesting against a proposed development in a local park. The owners of the shopping centre gave the applicants permission to do this for a month, but declined to extend the permission for a second month for a further petition. They did so on the basis that they wished to remain strictly neutral on such political issues. A letter refusing permission significantly stated:

"... the Galleries is unique in as much as although it is the Town Centre, it is also privately owned."

In its judgment, the majority of the court recalled the key importance of freedom of expression in a functioning democracy. The court stated at paragraph 43:

"The Court recalls that the applicants wished to draw attention of fellow citizens to their opposition to the plans of their locally elected representatives to develop playing fields and deprive their children of green areas to play in. This was a topic of public interest and contributed to debate about the exercise of local government powers. However, while freedom of expression is an important right, it is not unlimited. Nor is it the only Convention right at stake. Regard must also be had to the property rights of the owner of the shopping centre under Article 1 of Protocol No. 1."

Then after rejecting the suggestion that such a shopping mall should be regarded in a special category as a quasi public place, the court stated at para 47 with regard to article 10:

"That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights. A corporate town where the entire municipality is controlled by a private body might be an example…"

The court then applied that test to the facts, and held that there were clearly other methods of campaigning than collecting signatures open to the applicants. The court acknowledged the applicants argument that "the easiest and most effective way of reaching people was in using the Galleries", but that, in itself, was insufficient to show that the applicants were otherwise unable to exercise their freedom of expression in a meaningful manner. For the same reason, the court held that there was no violation of article 11.

30. In School of Oriental & African Studies v Persons Unknown, unreported, 25 November 2010, of which I was provided with an unapproved transcript, Henderson J applied the Appleby case to the situation of students occupying part of a building at SOAS in protest against the increase in fees and cuts to the education budget. In his unreserved judgment, after reference to the judgment of the European Court of Human Rights in Appleby, the judge held that it is "entirely fanciful" to suggest that preventing the students exercising their rights in the particular building in question would prevent them form exercising their rights of expression, and similarly that article 11 did not, on the facts, require the court to override the property rights of SOAS in their own building.
31. Mr Knafler argued that Appleby shows that each case is very fact sensitive, and that here there were good grounds why the Occupiers' rights should prevail. They were not damaging the Property, which was an unoccupied building, by distinction with the situation in the SOAS case. The occupation draws attention to matters of legitimate and very real public interest and concern, both as regards the poor use of resources and as regards the conduct of large banks in general and UBS in particular. He submitted that the location was "absolutely integral to the message the Occupiers seek to convey", and that the possession order effectively prevented the Occupiers from communicating their views to their fellow citizens in a meaningful way.
32. Those submissions confuse the question of whether taking over the bank's property is a more convenient or even more effective means of the Occupiers expressing their views with the question whether if the bank, or, more accurately, its subsidiary, recovered possession, the Occupiers would be prevented from exercising any effective exercise of their freedom to express their views so that, in the words of the Strasbourg Court, the essence of their freedom would be destroyed. When the correct question is asked, it admits of only one answer. The individuals or groups currently in the Property can manifestly communicate their views about waste of resources or the practices of one or more banks without being in occupation of this building complex. No one is seeking to prevent them from coming together to campaign or promulgate those views. I need hardly add that the fact that the occupation gives them a valuable platform for publicity cannot in itself provide a basis for overriding the respondent's own right as regards its property.
33. As regards article 11, Mr Knafler pointed to the various social and educational activities being organised in the Property by the Occupiers, which he said were of social value as they benefited a substantial number of visitors. I was given details of those activities in summary, in particular by Mr Phoenix in his supplementary address to the court. I can accept that some, and perhaps many, of those activities are of value. But put in terms of article 11, or indeed article 10, as it must be if the argument was to have any legal effect, that would provide a justification for the taking over of any privately owned property that was not occupied or in use in a location that was convenient for socially beneficial activities or enterprises. Unsurprisingly, there is not the slightest support in any authority for the suggestion that article 11 or article 10, if that is also said to apply, provides any basis for overriding property rights on that ground.
34. Mr Knafler sought to stress that the evidence so far before the court on these matters was only illustrative and that much more detail would be provided if the matter went to a full hearing. But as I consider that these human rights grounds stand not the slightest chance of success, they would not be advanced by the admission of further details and information.
35. I should add that my attention was drawn to the judgments of the Court of Appeal in the Parliament Square case, Hall v Mayor of London [2010] EWCA (Civ) 817, [2011] 1 WLR 504, where Lord Neuberger MR said at para 37:

"The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the defendants' desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11."

However, the MR significantly went on to state at paragraph 38:

"Having said that, the greater the extent of the right claimed under article 10.1 or article 11.1, the greater the potential for the exercise of the claimed right interfering with the rights of others, and, consequently, the greater the risk of the claim having to be curtailed or rejected by virtue of article 10.2 or article 11.2."

That case was concerned with a very prominent public space and a public demonstration. I consider that that raises different considerations from the occupation of private property, and no doubt for that reason the Court of Appeal does not refer to the Appleby judgment of the European Court of Human Rights, albeit that it was cited in argument – see 1 WLR at 506. Accordingly, I do not derive any particular assistance from that judgment

36. Finally, Mr Phoenix, in his oral submissions, contended that pensioners who had lost money by reason of what he alleged was inappropriate marketing by UBS of certain financial products, in particular Shared Appreciation Mortgage Schemes, had, as a result, a proprietary interest in the property. This argument formed no part of Mr Knafler's submissions and is fundamentally mistaken. Whether or not such pensioners or others may have any claims against the UBS company which marketed those products (as to which, I stress, I express no opinion), that cannot begin to give them a proprietary interest in this property of the respondent. I should add that there was no evidence that any of the Occupiers against whom the possession order was made was such a pensioner or purchaser of a UBS mortgage.

Conclusion.

37. It follows that the application to discharge the injunction is dismissed. As regards the application to set aside the possession order, despite the serious defects in the notification of the original hearing to the applicants, in all the circumstances now before the court, and having regard to the lack of any defence, I consider that it is not appropriate to set the order aside. Accordingly, that application is also dismissed.
__________