Summary

The court remitted for reconsideration the question of whether it was proportionate to grant applications for an order for possession and an injunction against a protestor in respect of his protest and camping on an area of Parliament Square Gardens, where his human rights had not been considered separately from those of a larger, separate, group of protestors.

Facts

The appellant (H) appealed against a decision ((2010) EWHC 1613 (QB)) granting the respondent mayor an order for possession and an injunction. A group of protestors (X) had set up a camp in Parliament Square Gardens (PSG) where they had protested for over two months. H had been camping for approximately nine years to conduct a separate, unrelated protest, on a grassy area on another side of PSG and he had later been joined by two other protestors. Upon considering the mayor's applications for an order for possession of PSG and an injunction requiring them to leave it, a judge considered evidence of criminal damage to the flower beds and that other people were being prevented from protesting lawfully, and he found that, while the removal of the protestors would interfere with their rights under the European Convention on Human Rights 1950 art.10 and art.11, it was a proportionate response. The applications were granted against most of the protestors, including H and his accompanying protestors. However, one protestor (Y), who had been part of X, was not made subject to the injunction. The protestors, including H but excluding Y, were liable to pay the mayor's costs, but Y was ordered to pay only the costs of the possession proceedings. H submitted that (1) it was convenient to consider that the application and order for possession against him extended to the whole of the PSG and not just the small part he occupied; (2) the speed at which the proceedings progressed caused him prejudice because he was unable to obtain medical reports to support his position that it was better for him to sleep on the grass than on the pavement, and the judge erred by failing to distinguish between him and X when considering proportionality.

Held

(1) Where only part of what could fairly be described as one piece of land was occupied by a defendant, the owner of the land could claim possession of the whole piece, Secretary of State for the Environment, Food and Rural Affairs v Meier (2009) UKSC 11, (2009) 1 WLR 2780 followed. Further, where the whole piece of land was occupied by trespassers and it was difficult to identify precisely who occupied what part, it was particularly unrealistic to expect the claimant to identify which part each defendant occupied, and practicality was a relevant factor, University of Essex v Djemal (1980) 1 WLR 1301 CA (Civ Div) applied. (2) H was in a different position from that of X. H and his demonstration were separate from them and their demonstration, he had been demonstrating for far longer and his demonstration pitch was not under attack in the instant proceedings. Further, his demonstration had not put off visitors or other demonstrators and he had not damaged the flora on PSG. The judge did not make findings of fact as to the effect of making an order for possession or granting an injunction against H on his ability to maintain his demonstration or on his rights under art.10 or art.11. He also did not expressly consider H separately from X when considering the proportionality under art.10 and art.11 of making the orders against him. The judge had received a medical report about H before he gave judgment, but it had only been received on the last day of the hearing and H had very limited opportunity to consider its contents and to make submissions about it. The question of whether it was proportionate to make an order for possession and to grant an injunction against H was to be remitted for reconsideration by the High Court. H was entitled to have his case decided on the basis of the medical and other evidence he wished to put before the court and to have a reasoned judgment. (3) There was to be no order for costs between Y and the mayor. (4) It was appropriate to limit the extent of the costs of the proceedings for which X were liable to 80 per cent of the total costs as part of the total amount related to H and the protestors who joined him, and that case was separate and would be remitted.

Appeal allowed