20 July 2020 by

London Borough of Hackney v Persons Unknown in London Fields, Hackney (The ‘prescribed area’) [2020] EWHC 1900 QB

This case concerned the traditional tort of public nuisance. Such a declare is addressed to behavior which inflicts injury, damage or inconvenience on all members of a category who come throughout the sphere or neighbourhood of its operation. As Linden J defined, an individual could deliver an motion in their very own title in respect of a public nuisance

after they have suffered some explicit, foreseeable and substantial injury over and above what has been sustained by the general public at massive, or when the interference with the general public proper includes a violation of some non-public proper of the claimant. An area authority can also institute civil proceedings in public nuisance in its personal title pursuant to part 222 Native Authorities Act 1972: see Nottingham Metropolis Council v Zain  [2002] 1 WLR 607.

The case heading (partial screenshot above) offers a reasonably complete checklist of actions that will come throughout the class of “public nuisance”. I recall John Spencer’s immortal phrases from his article within the Cambridge Legislation Assessment on the topic in 1989:

Why is making obscene phone calls like laying manure on the street? Reply: in the identical manner as importing Irish cattle is like constructing a thatched home within the borough of Blandford Discussion board; and as digging up the wall of a church is like serving to a homicidal maniac to flee from Broadmoor; and as working a joint-stock firm and not using a royal constitution is like being a standard scold; and as retaining a tiger in a pen adjoining the freeway is like depositing a mutilated corpse on a doorstep; and as promoting unsound meat is like embezzling public funds; and as garaging a lorry on the street is like an inn-keeper refusing to feed a traveller; and as retaining treasure-trove is like subdividing homes which so “turn into hurtful to the place by overpestering it with poor.” All are, or at a while have been mentioned to be, a standard (alias public) nuisance.

In order you possibly can see, this tort encompasses fairly a spread of human enterprises.

However the issue is this can be a civil motion with all its attendant hurdles. The Council utilized for an order from the court docket to ban, amongst different issues, the consumption of alcohol within the park. Thornton J heard the unique software and had issued a short lived order banning the entry of members of the general public to London Fields and the consumption of alcohol for a interval of days till the return date of the appliance, ninth of July.

The kind of injunction which the Council was looking for was one which applies on an momentary foundation, pending a trial of the dispute between the events. Making use of American Cynamid rules, the court docket is requested to resolve whether or not it ought to make orders which protect the established order in some or all respects in order that justice will be accomplished between the events at trial. Having established that the matter was definitely triable, the primary query for Linden J to resolve was whether or not claims in opposition to “individuals unknown” in non-public legislation litigation similar to this had been viable, given the difficulties in service of the declare kind and the nebulous nature of teams involving “newcomers” after the alleged tortious exercise had been recognized.

The issue with the “Thornton order”, as Linden J noticed it, is that it addressed a wider class of individuals than had been alleged to be committing a public nuisance; i.e. anybody who occurred to be in London Fields on the time the order was in pressure. This was not a case the place the place the Council was accusing, and in any occasion couldn’t accuse, all individuals utilizing London Fields of committing the tort of public nuisance.

I couldn’t see how the proposed Order may apply to individuals who aren’t, and aren’t supposed to be, events, nonetheless much less to people who find themselves unnamed and who could turn into topic to the Order just by dint of visiting London Fields or merely strolling throughout it to get from A to B.

There have been additionally issues with defining the defendants in relation to their explicit behaviour for the needs of the tort of public nuisance.

the Defendants needed to be individuals who “gathered” in London Fields for a specified objective or who “gathered” and who did one thing which was mentioned to be a public nuisance. It was not clear to me how this may work in relation to an individual who, for instance, left a gathering to defecate within the bushes and I didn’t see how this may apply in any respect to such an individual who had not been a part of any gathering at any stage, though I understood that the Council would nonetheless contend that they dedicated a public nuisance.

The unique Order prohibited outright the consumption of alcohol within the space. Once more, Linden J discovered this an unrealistically massive catchment: any consumption of alcohol was supposed to be caught, no matter whether or not it accompanied any type of anti-social behaviour.

So, mother and father of a household which determined to spend a Sunday afternoon away from their cramped Council flat, having a picnic in London Fields with their youngsters, couldn’t have a glass of beer with out being in contempt of court docket for breaching the proposed Order and liable to arrest with out warrant. To make issues worse, even when they determined to drink lemonade they’d be liable to the identical destiny if a police officer or Council worker or contractor had cheap grounds to suspect that there was vodka in it.

The decide didn’t settle for that ingesting alcohol, nonetheless much less ingesting liquid which a policeman or council officer moderately believed to be alcohol, may even arguably be a public nuisance in itself. Subsequently on this level alone there can be no triable situation that such an individual had dedicated a tort, the appliance for interim reduction would fail the primary requirement of American Cyanamid.

it’s one factor to ban an individual who has, say, been harassing or assaulting one other particular person from being inside 250 yards of her handle (Burris v Azadani [1995] 1 WLR 1372); however it’s fairly one other to ban a wholly legislation abiding particular person from doing issues that are lawful.

Linden J declined to amend the Order in order to ban the consumption of alcohol together with one of many different prohibited actions. This was certain to lift not possible issues of demarcation and definition.

He did nevertheless permit the prohibition on “threatening or utilizing violence, or partaking in abusive behaviour in the direction of any member of the general public or any worker, agent or contractor of the Council who query or problem behaviour”

He additionally (with some reluctance) concluded {that a} energy of arrest must be connected in an effort to make the injunction simpler given the overall nature of the conduct alleged (sleep disturbance from loud music; well being hazards introduced by public defacation) and “the proof of the half which drink and medicines have performed.”

He granted the Council an interim injunction (set out within the Order annexed to the judgment) however “solely on the premise that there can be a trial and that this may happen within the close to future.”

The service of the declare on Unknown Individuals has been resolved by the next strategies: service by posting of a Public Discover (which incorporates an e mail handle from which the paperwork listed beneath will be requested, and a hyperlink by which the amended statements of case and different paperwork within the case could also be accessed) in numerous places in and across the Prescribed Space, and the posting of that Public Discover on the Claimant’s web site and hyperlinks to related paperwork on its Fb and Twitter accounts. These, in Linden J’s view, had been satisfactory steps to represent service of the Declare Type.

Anybody residing within the locality of London Fields could also be within the map and the exact phrases of the order appended to the judgment. The interim order and energy of arrest will final till 4pm on Friday 16 October 2020, throughout which week there might be an additional listening to of this order.

The Discover of Injunction is accompanied by this warning:

If you don’t adjust to this order it’s possible you’ll be held in contempt of court docket and imprisoned or fined, or your belongings could also be seized.