Planning for Protests
19th April 2016
In recent years there have been many high-profile protests on public property; St Paul’s Cathedral and the Parliament Square protests are two of the best known. These resulted in the cases of City of London v Samede & Others  EWCA Civ 160 and Hall & Others v Mayor of London  EWCA Civ 817. There are also numerous instances of protesters occupying privately-owned commercial land, claiming the protection of human rights defences to stay in possession. Ultimately, the law is against the trespassers but, without swift action, delay can cost the landowner significant sums. These costs are commonly due to the extra security required to prevent further trespassers from entering; the halt to construction or refurbishment works; and the disruption to a working building. It is not uncommon for landowners to incur costs of several hundred thousand pounds while enforcing possession orders against trespassers. Owners would be well advised to plan for such an incursion if there is a risk that their property could be a target.
It is important for the landowner’s advisers to act as soon as the trespass is discovered. Urgent proceedings can be issued either in a county court or the High Court but the latter is preferable because of the availability of a judge in the applications list. CPR r 55.3(2) says that the claim may be started in the High Court if the claimant files, with his claim form, a certificate stating the reasons for doing so, which must be accompanied by a statement of truth (see CPR r 21.1(1)(e)). Proceedings may be brought in the High Court against trespassers where there is a substantial risk of public disturbance or of serious harm to persons or property which requires immediate determination (CPR Practice Direction 55, para 2.1). This will frequently be the ground relied on in cases of protesting, especially if the building is listed or if the site is under development.
To act swiftly the landowner will want to abridge the time for service of the claim on the protesters. In the High Court such an application can be made without notice, either before a Master or the Applications Judge. Supporting evidence should set out the reasons for shortening the time for service (Practice Direction 55A, para 3.2). Additionally, the landowner’s advisers should gather as much evidence as possible to support the assertion that there is risk to property or persons. Where protests are organised on social media platforms, screenshots of tweets or videos should be exhibited.
In Sun Street Properties Ltd v Persons Unknown  EWHC 3432 (Ch), the time for service of the proceedings was abridged to 45 minutes and there was a bundle of more than 100 pages. Roth J described this notice period as “grossly inadequate”. He made it clear that “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.” If time for service is abridged, the claimant must ensure it does everything it can to bring the proceedings to the attention of the trespassers as quickly as possible. Where personal service is executed, it is good practice to also serve a letter containing the contact details of the solicitor with conduct of the case, including, if necessary, an out-of-hours telephone number or e-mail address. In cases where very short notice is given, the greater the lengths the claimant’s advisers take to give notice, the less likely it is the trespassers will obtain an adjournment at the hearing.
The most commonly deployed defence by protesters is that depriving them of possession is a breach of their rights under Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights. However, the law on this point is now firmly settled and such defences should not routinely be allowed to succeed, even where they are raised at the summary hearing. While the court will consider the facts of each case on its own merits, it is difficult to envisage circumstances where these defences would succeed in cases of privately owned land. The starting point is Appleby v United Kingdom  ECHR 222. Here, the applicants wanted to set up two stands in a shopping centre to obtain signatures for a petition protesting against a proposed development in a local park. Although the shopping centre was in the town centre, it was privately owned. The European Court of Human Rights rejected the applicants’ arguments under Articles 10 and 11 and held that the landowner’s property rights took priority. The court held that the applicants were able to carry out their protest elsewhere. Appleby has been applied in all the recent cases concerning occupation of privately owned land by protesters and trespassers. In Sun Street Properties protesters occupied a large complex of buildings previously owned by UBS, where they wanted to set up a “bank of ideas”. The court rejected the defences raised and refused an application for a further adjournment on the basis that adducing additional evidence would not assist them to establish a defence under Articles 10 and 11.
Trespassers will usually ask for an adjournment at the first hearing, claiming that they have not had time to instruct lawyers. Any adjournment can be prejudicial to the landowner and costs can quickly escalate. The court should be invited to carefully scrutinise the defence at the summary hearing and balance the competing prejudices between the landowner and trespassers. Groups such as Occupy London can fairly be labelled as “professional trespassers”. They know that if they occupy land the landowner will bring proceedings swiftly. Therefore, in most cases, it will be difficult for them to argue that they are unprepared. Where protesters take possession of a property they should be aware of potential proceedings and instruct lawyers in advance. In Samede the Court of Appeal warned that occupiers should be prepared to deal with the case summarily, without the need for an adjournment, where the well-worn human rights defences are raised. The key to evicting protesters quickly is planning in advance. Unnecessary expense can be avoided by having a strategy in place to deal with unlawful occupation, potentially saving hundreds of thousands of pounds.
Michael successfully acted for the land owners in RMC LH Co. Ltd & Another v Persons Unknown  EWHC (Ch) and BHS (In Administration) v Persons Unknown  EWHC (Ch).