Alison White v Plymouth City Council

The test for the grant of permission under CPR Rule 81.3(5) (interference with the due administration of justice) is that (i) a strong prima facie case must be shown; and (ii) it is in the public interest for an application for committal to be made (see Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1540 at [79]).

As a matter of principle, I accept that this form of contempt can be committed even where proceedings are not in existence. This is implicit in CPR Rule 81.3(5)(a) which states that permission is required where the application is made in relation to “interference with the due administration of justice, except in relation to existing High Court or county court proceedings”. This rule contemplates, therefore, that there will be cases where High Court or County Court proceedings are not in existence. That may be because they have concluded. Equally, that may be because they have not yet been started.

Furthermore, if, through the alleged contemnor’s deliberate conduct a party is in fact precluded from obtaining access to a Court so that the administration of justice cannot be carried out, it is not hard to see that this would amount to interference, in substance, with the due administration of justice.

In the instant case, I do not consider that it can sensibly be argued that the Claimant was precluded from obtaining access to a Court so that the administration of justice could not be carried out.

There is no direct evidence that the Council sought to impede the Claimant’s access to the Court, and the indirect or circumstantial evidence is slender. The Claimant relies primarily on (i) the use by the Council of the urgency procedure; (ii) the Council’s actions in delaying publication of the decision as long as possible; and (iii) the correspondence with Ms Jackman. In her affidavit, the Claimant summarises the Council’s conduct at paragraph 26:

“in the weeks leading up to the decision and felling of 14/03/2023, the Council and its officers discussed how to avoid scrutiny via the call in process, and carefully planned when a decision would be formally made and published so as to avoid any protest or challenge to the decision. It is also clear that Ms Jackman was involved throughout this period, including drafting the request to the Chair of the Scrutiny Committee for sign-off of the urgency procedure, holding discussions about when the decision could be published and providing legal support on the night about what to do in the event an injunction was received”.

It does not seem to me that these factors evidence a prima facie case that the Council sought to impede the Claimant’s access to the Court, let alone a strong prima facie case, which is a necessary element for the grant of permission. The Council has advanced a reason for the use of the urgency procedure – the necessity to take a decision before the election period in which ordinary local authority decisions cannot be made – which seems plausible.

Furthermore, the overwhelming evidence is that the Council’s conduct was mainly designed to avoid protest, rather than legal action. The evidence before the Court demonstrates that there was a real concern that there would be “direct action” taken against the plan to fell the trees. That explains why security guards had been engaged by the Council (as described by the Claimant in her witness statement), and the police were involved. Mr Barnard referred to this in his affidavit at paragraph 12:

“as there had been previous indications on Facebook by supporters of ‘STRAW’ that they intended to take direct action, it was considered expedient to immediately implement the decision on the same evening as the publication of the Executive Decision by the Leader”.

This also explains why the felling of the trees occurred at night. Mr Barnard explained in his affidavit at paragraph 11 that:

“it was always the intention to fell the trees at night (assuming and approved Executive Decision). This was based on advice from Morgan Sindall, in relation to their Construction Design and Management (‘CMD’) responsibilities in relation to public safety given the high footfalls in the city centre during the day and early evening. It was also based on the specific Risk Assessment and Method Statement produced by the specialist arboriculture contractors Glendale who regularly remove trees at night for public safety reasons. In addition, in accordance with the Section 171 Permit secured from the Highway Authority, careful arrangements to keep access open to local businesses who would still be trading up to 11:00 at night and for the public to traverse the public highway on either side of Armada Way also had to be accommodated whilst removing the trees safely. Moreover, the City Centre Company advised that they considered disruption to city centre businesses by felling trees and sectioning off parts of Armada Way during shopping hours, given the fragility of the economic climate at present would not be acceptable.”

With respect to the legal process, the very fact that – on the Claimant’s own case – the Council was discussing the possibility of an injunction and what to do if one was obtained seems to demonstrate the opposite of a course of conduct calculated to interfere with the due administration of justice. Rather, it evidences the Council acknowledging that the legal process might be accessed by a concerned resident, or group of residents, and that the Council would be obliged to respect the decision of a Court if an injunction was granted. As the Claimant describes at paragraph 37 of her affidavit (referring to Mr Barnard’s second witness statement in the judicial review proceedings): “He also says that Emma Jackman had advised him on arrangements to be in place, including for those on site to contact him in order that any injunction could be served on him (para.8). It seems from this that Ms Jackman and Mr Barnard knew an injunction was likely and had discussed what to do in the event that one was obtained.”

As for the involvement of the Council’s solicitor, Emma Jackman, on 14 March 2023 itself, her evidence is that she was working from home in Leicestershire, and not Plymouth, on that date. She says that this meant that she had “limited peripheral knowledge as to what was occurring beyond the matters that I was focusing on that day”. She also explained that it was not unusual that she would not be involved in the progress of a decision report following final legal sign off or review. She was not the Head of Democratic Support, the role with responsibility for decision-making and governance. She was aware that there was a possibility that the decision would be taken on 14 March 2023, but she was not certain that it would be. This is a plausible explanation for what transpired. Indeed, the Claimant accepts that Ms Jackman did not know that the decision to implement the redevelopment scheme had been made when she drafted the letter and sent it out.

As a consequence, there is not a prima facie case (let alone a strong prima facie case) that Ms Jackman sought to mislead the Claimant (or the Claimant’s solicitors) when she responded to the solicitors’ letter at 17:55, answering the various points that had been made and concluding with:

“Finally, we can see no reason set out in this or your previous letter to require us to confirm that no further action will be taken by the Council at this stage. We note there remain no points outstanding other than the EIR responses, which will be dealt with in accordance with the statutory regime.

The solicitors had stated at the end of their letter sent earlier on 14 March 2023: “Given the urgency of the situation, please respond within 5 days and before any final decision is made”.

In any event, even if Ms Jackman had known that the decision had been made earlier by the Council and did not alert the Claimant’s solicitor to this fact in her letter, she would also have known that the decision would have to be made public (as a matter of statutory obligation) and would therefore have come to the Claimant’s attention. Indeed, publication actually happened within minutes of Ms Jackman’s letter being sent out and so her response had no material impact.

Moreover, the evidence before the Court is that the Claimant was not, in fact, impeded from seeking access to the Court following publication of the Council’s decision. Indeed, had the Claimant acted expeditiously on learning of the Council’s actions after 6pm on 14 March 2023, or even after reading the Council’s decision at 6:45pm on 14 March 2023, an application for an injunction could have been made much sooner than in fact was the case, and the order may even have been made before the first of the trees was felled. It would appear that the first tree was felled at 8pm, but the Claimant did not even speak to her solicitor until 9pm three hours after she learned that the Council was starting the works to fell the trees. There is no evidence before the Court as to why the Claimant did not seek an injunction earlier that evening. There is no suggestion in the evidence that the Council took any steps which prevented the Claimant from making an application earlier that evening.

In her affidavit, dated 3 May 2024, the Claimant describes the correspondence with Ms Jackman, the Council’s solicitor (to which I will return later in this judgment). The Claimant also states that:

“28.

I first heard that it looked as though work was going ahead on site at around 6pm on 14/03/2023 when a friend who was with me got a call from a STRAW supporter on Armada Way.

29.

I then checked the Council’s website and saw that it had been updated with further plans and links to various reports relating to the decision. I was surprised as we had received no notice of any decision by the Council, despite our clear interest in the proposals.

30.

The Council did not notify me or other STRAW members of the decision to approve the scheme or of their intention to start felling immediately.

31.

I arrived at Armada Way at around 6.45pm and saw numerous contractors, security guards, police, vans and lorries. Fencing was being erected by contractors around the site and the nearby road, which was closed. I asked a police officer what was happening. She said she didn’t know and that she was only told she had to work that afternoon and that she finished at 10pm. I could not see anyone from the Council to speak to.

32.

At about 7pm we saw heavy machinery, including a grab truck, felling machine with a circular saw attached and a very large wood chipping machine, arriving and contractors wearing ear defenders and visors.

33.

It is hard to estimate numbers since it was not possible to view or access all of Armada Way, but I believe there may have been about 30 contractors on site, with perhaps a further 30 security guards stationed around the area and up to 30 police officers at any one time.

34.

At about 9pm I spoke with my solicitor who said she would try and get an injunction.”

Accordingly, I do not consider that a prima facie case has been made out, let alone a strong prima facie case, that the Council’s conduct was calculated to impede access to the Court; and, in fact, it did impede access. In the circumstances, permission to proceed with this application to commit is refused.

I do not need, therefore, to consider whether the public interest requires there to be a hearing of this contempt application. Indeed, it would be artificial to do so given there is not a sufficiently weighty factual, or legal, case to justify permission. I would say, however, that the fact that the Council is carrying out an independent review into the circumstances of the decision-making process and the implementation of that decision would not, by itself, have tipped the balance against the grant of permission. On the other side of the balance would have been the need for the Court to guard against the interference with the due administration of justice, something which an independent review could not achieve.

The Council invites the Court to strike out or dismiss the application for committal on Ground Two, as an abuse of process, in accordance with the approach of Briggs J in Sectorguard. In my judgment, proceeding with this application would be an abuse of process and so it should be struck out and dismissed.

First, the evidence before the Court is that any breach of Freedman J’s order would be ‘technical’ or have no reasonable prospect of success, even if the requirement for personal service was dispensed with. Second, there was a considerable delay in making the application, which has not been explained, or properly explained.

The chronology as to what took place in the early hours of 15 March 2023 does not appear to be in dispute:

“(i)

Injunction was granted by Freedman J at 00:29;

(ii)

at 00:35, Elizabeth Bailey telephoned the emergency contact number of the contractors and informed Jack Howard, the Assistant Site Manager, that she was with STRAW and they had an injunction “to stop the works”. Ms Bailey subsequently met with Paul Barnard, the Council’s Service Director for Strategic Planning and Infrastructure, and told him that “the injunction had been approved” and that she was expecting it to come through by email at any moment. Mr Barnard told her to call him when they had an injunction order to serve.

(iii)

at 00:52, the Claimant’s solicitors sent an unsigned copy of the Order by email to Mr Barnard.

(iv)

at 00:57, a signed copy was sent to senior officers of the Council;

(v)

at 01:00, Emma Jackman advised senior members of the Council’s team that a signed injunction had been received and that works should cease immediately.

(vi)

at 01:02, Mr Howard was ordered to stop the works, and he made a call on his radio to stop all works at 01:03. All machinery was stopped within less than two minutes.”

Although I have been asked to make a decision as to whether to waive the requirement for personal service at this stage, it seems to me that this is a matter that would more sensibly be addressed at a substantive hearing. What was said by Ms Bailey to the Council’s officers or contractors with respect to the injunction is clear: they should “stop the works”. What they reasonably understood her to mean is a question that cannot be determined on the papers, but should properly be dealt with by live evidence.

Even if, however, the Council’s officers and contractors understood Ms Bailey to mean that they should stop all work that was preparatory to felling as well as the felling of trees, there is no evidence before the Court that any such work was carried out after Ms Bailey had spoken to Mr Barnard. There is no evidence from the Claimant or Ms Bailey to this effect. Furthermore, there is no evidence from the Council’s officers or contractors that suggests such work was carried out.

Mr Howard’s evidence was that certain trees could not be felled as a result of the presence of protestors. Furthermore, although he cannot say categorically that no trees were felled in the period between 00.35 and 01.03 on 15 March 2023, he gives an explanation for why they would not have been, as there was considerable work involved in “processing the already felled trees”. The evidence from Mr Howard is that:

“15.

I then inspected the area next to Subway (upper east side of Armada Way) where there were protestors under the trees which were planned to be felled. It was agreed between the police and sub-contractors that those trees could not be felled because of the risk of injury to the protestors. I returned to the site office at 00.54. I was told once again by Mr Barnard that an injunction has not been formally served (I cannot recall the exact language he used). But I was again instructed to continue work until formally instructed otherwise.

…

21.

I have been asked to explain what works were being undertaken on site from approximately the time I took the phone call at 00:35 until the works stopped following my radio call at 01:03.

22.

The plan for the evening was for trees to be felled at the north and south end of Armada Way at the same time. The “south” trees were smaller so could be chainsawed whilst the heavy machinery felled the larger trees to the north.

23.

Between 00.35 and 01.03hrs the team would have been processing the already felled trees - ie. Reducing the tree lengths to a size which would have enabled transportation away from Armada Way. Since a significant number of trees had been felled and they needed to be processed to make space for the processing of the remaining trees to be felled. However, I cannot say for certain that no trees were being felled in this period.”

There is no evidence to contradict what Mr Howard has said, or to demonstrate a positive case that trees were actually felled or works preparatory thereto their felling were carried out. There were presumably a number of witnesses who might have been able to put forward that case if that had actually occurred, as there were a number of protestors at the site. Instead, Ms Sullivan argues that disclosure of CCTV footage from the Council might show that works did take place. This is, however, far too speculative, and is not a proper basis for the Court to grant permission.

In the absence of any evidence – whether direct or indirect – that the terms of the order had been breached following Ms Bailey’s conversation with Mr Barnard about the order, I consider that there is no real prospect of the Claimant successfully establishing anything other than a technical contempt at a substantive hearing, and there is no real purpose to be served by the Court hearing an application for contempt solely for the purpose of seeking to hold the Council to account for something which made no material difference.

Furthermore, it is clear that there was a considerable delay in the Claimant making the application for contempt, and yet that delay has not been explained by the Claimant. Whilst I cannot say that the delay between the date of the alleged contempt (15 March 2023) and the issuing of the application for contempt (17 November 2023) has caused any specific prejudice to the Council, it is important as a general matter for applications of this kind to be brought swiftly. In some cases, this is important as the contempt application may lead to the enforcement of the terms of the relevant order that is alleged to be breached. In the instant case, even though there was nothing for the order to bite on, given that most of the trees had already been felled and the Council had committed not to fell the remaining trees, swift action would have enabled the Court to mark the seriousness of the alleged contemnor’s conduct in breaching a Court order at or near the time of that alleged conduct.

Even though I am dismissing the contempt application, I consider that the Claimant should be entitled to costs protection under the Aarhus Convention, it being agreed by the parties that that protection can apply retrospectively.

CPR Rule 46.24(2)(a) provides that an “Aarhus Convention” claim for the purpose of that section of the CPR (which provides for limiting the recoverable cost from a party in an Aarhus Convention claim: see CPR Rule 46.26) is:

“a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”)”.

CPR Rule 46.24 therefore requires two conditions to be satisfied: (i) the claim must be brought by way of judicial review or statutory review; and (ii) the claim must be within the scope of Article 9(1), 9(2) or 9(3) of the Aarhus Convention.

The application for the injunction was a matter that fell within the scope of Article 9(3), as the Claimant sought to challenge an alleged contravention by the Council of domestic law relating to the environment, and so condition (ii) is satisfied. In my judgment, a claim brought by “judicial review” must be read as including an application for contempt that arises from the breach of an order made in, or in anticipation and contemplation of, judicial review proceedings, and so condition (i) is satisfied.

Whilst it is strictly correct that at the time when the application for an injunction was made, judicial review proceedings were not yet afoot, it was a condition of the order made by Freedman J that the Claimant had to file an application for judicial review by the close of business on the very day that the order was made: 15 March 2023. The application for the injunction was made, therefore, in anticipation of and in contemplation of judicial review proceedings. When CPR Rule 46.24 refers to an Aarhus Convention claim as being one that involves a claim for judicial review, that must sensibly be read to include interim injunction proceedings that are made in anticipation of and in contemplation of judicial review proceedings. To hold otherwise would mean that the United Kingdom Government, as a Party to the Aarhus Convention, was not giving proper effect to that Convention when setting out its cost protection rules.

This can clearly be seen when one considers Article 9(3) of the Aarhus Convention, and the following provisions. Article 9(3) provides that:

“ . . . each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”.

Articles 9(4) and (5) provide that:

“4.

. . . the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5.

In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice”.

It can be seen, therefore, that on its face the Aarhus Convention requires Parties to provide “adequate and effective remedies, including injunctive relief as appropriate” where public authorities act in contravention of provisions of their national law relating to the environment. This must surely include injunctive relief that precedes, but is conditional on, the lodging of judicial review proceedings. In many cases, including the present, it is not realistic to have expected judicial review proceedings to have been initiated before the application for injunctive relief was sought.

It also seems to me that contempt proceedings that relate to an order for an injunction made in judicial review proceedings, or in anticipation of those proceedings, would also fall within the scope of the Aarhus Convention. If an order for an injunction made by the Courts in, or in anticipation of, judicial review proceedings alleging a contravention of environmental laws, cannot be enforced then the remedies available will not be “adequate” or “effective” as required by Article 9(4).

Mr Beglan, for the Council, submitted that this cannot apply to situations where (i) the application for contempt would not “compensate past damage, prevent future damage and/or to provide for restoration”, as the trees had already been felled; and (ii) the substantive proceedings were found to be “academic”. Mr Beglan contends that this falls outside of the general understanding of what the Aarhus Convention regime is intended to cover, referring to the “implementation guide” to the Aarhus Convention, produced by the United Nations Economic Commission for Europe, Second edition, 2014.

Under the heading ‘Adequate and effective remedies”, the implementation guide states that:

“The objective of any administrative or judicial review process is to have erroneous decisions, acts and omissions corrected and, ultimately, to obtain a remedy for transgressions of law. Under paragraph 4, Parties must ensure that the review bodies provide “adequate and effective” remedies, including injunctive relief as appropriate. Adequacy requires the relief to ensure the intended effect of the review procedure. This may be to compensate past damage, prevent future damage and/or to provide for restoration. The requirement that the remedies should be effective means that they should be capable of real and efficient enforcement. Parties should try to eliminate any potential barriers to the enforcement of injunctions and other remedies.

When initial or additional damage may still happen and the violation is continuing, or where prior damage can be reversed or mitigated, courts and administrative review bodies must be able to issue an order to stop or to undertake certain action. This order is called an “injunction” and the remedy achieved by it is called “injunctive relief” (see box below). In practice, use of injunctive relief can be critical in an environmental case, since environmental disputes often involve future, proposed activities, or ongoing activities that present imminent threats to human health and the environment. In many cases, if left unchecked, the resulting damage to health or the environment would be irreversible and compensation in such cases may be inadequate.

In other cases, compensatory measures, e.g., to improve the quality of the environment elsewhere, may be the most adequate remedy possible. Although monetary compensation is often inadequate to remedy the harm to the environment, it may still provide some satisfaction for the persons harmed. Monetary compensation may also be a relevant remedy when paid to public authorities by the operator, so as to compensate for the public money spent in vain to protect an area or a species that was adversely affected by an act or omission by the operator in question.

Yet another related form of remedy available in some countries, for example in France, enables a member of the public to bring civil proceedings to challenge a breach of environmental law (as contemplated in article 9, paragraph 3) to recover civil monetary penalties from the owner or operator of a facility transgressing environmental law in place of the appropriate government agency. Such proceedings are sometimes known as “citizen enforcer” proceedings and are discussed again below.”

(Emphasis added). Mr Beglan submits that the present application would not “compensate past damage, prevent future damage and/or to provide for restoration”, as the trees have already been felled.

I consider that Mr Beglan’s argument would lead to absurd consequences. It would mean that a public authority against whom an injunction is made could escape the strictures of the Aarhus Convention regime by, as is contended in this case, deliberately breaching an order for an injunction and destroying the subject matter that the injunction was designed to protect. These consequences can be avoided if Article 9(3)-(4) are read as, I understand them to be, to apply to the general mechanisms available to members of the public concerned about environmental matters, rather than to the facts of a particular case. In the domestic context, the contempt regime is the mechanism by which injunctions in environmental matters can generally be enforced even if, in a particular case, enforcement would not have a direct environmentally positive effect.

As the application for contempt under Ground Two falls within CPR Rule 46.24, and the Aarhus Convention more generally, the costs of the claim are subject to the protection at CPR Rule 46.24. This applies to the whole claim, and not just to the part of the claim that relates to Ground Two. It is not necessary, therefore, for me to determine whether Ground One would, if brought on its own, have attracted costs protection under CPR Rule 46.24. I have to say, however, that it is doubtful that it would have done. Ground One was not made as part of, or in anticipation of, judicial review proceedings, even though it has connections to some of the factual matters in those proceedings. Ground One was not seeking to enforce an order made in, or in anticipation of, judicial review proceedings, or to mark the failure of the Council to comply with such an order.

As I find that the Claimant is entitled to protection under the Aarhus Convention, it is not necessary for me to deal with the alternative contention that costs protection under the Cornerhouse principles should have been afforded to the Claimant.

For the foregoing reasons, therefore, I refuse permission with respect to Ground One, and dismiss Ground Two.