Jones & Anor v Persons Unknown & Anor

JUDGE HODGE QC: This is my extemporary judgment on the hearing of a claim for possession by Mr Terence Neal Jones and his son, Mr Terence Andrew Jones, against Persons Unknown. The claim number is A30MA971. On 12^th November 2014, which was the Tuesday of last week, the claimants issued a claim form for possession of property at Borras Head, Borras, Wrexham LL13 9TL as shown edged red on a plan attached to the particulars of claim. What the claimants say is that they are the owners of the land. Part is registered under title numbers WA609866 and CYM262408 whilst the remainder is unregistered land. The unregistered title stems from an assent in favour of Mr Neal Jones, the first claimant, dated 13^th September 1988. Mr Neal Jones gifted the land on 31^st March 1989 to himself and his son, Andrew, as tenants in common, as to four fifth parts for Neal and as to the remaining 1/5^th part for Andrew. I am satisfied on the evidence that the claimants are, indeed, the freehold owners of the land which is the subject of this possession claim.

On 17^th October 2014 various persons began occupying part of the claimants’ land (it is said) without the claimants’ consent or licence in connection with what is described as an “anti-fracking protest”. The persons in occupation would prefer to describe themselves as protestors and protectors of the land. The defendants have constructed wooden structures on the land and have pitched a number of tents. The proceedings were issued in the Manchester District Registry of the Chancery Division of the High Court rather than in the local County Court, which would have been Wrexham County Court, in the principality of Wales. The proceedings were accompanied by the certificate required by CPR 55.3 (2). That explains that the action had been commenced in the Manchester District Registry of the High Court rather than the local County Court for two reasons. First, it is said that the claim is against protestors, and that there is a substantial risk of public disturbance. The number of protestors on the property is said to have increased since they first arrived on 17^th October this year, and the claimants believe they will rapidly increase over the forthcoming days and weeks. A large number of protestors in one case pose a substantial risk of public disturbance. Secondly, the claim is said to be against protestors and there is said to be serious harm to persons or property which is said properly to require immediate determination.

The claim form is supported by a witness statement from Miss Helen Evans, a solicitor employed by the claimants’ solicitors, Hill Dickinson, dated 11^th November 2014, together with exhibit HE1. The claim form was, as I have mentioned, issued on 12^th November, which was, in fact, the Wednesday rather than the Tuesday of last week. I will correct the erroneous day of the week in any approved transcript of this judgment. The claim form was not served immediately. It was, in fact, served on Monday 17^th November, at about 12 noon. I have evidence from Mr David Webb, the process server, that he placed the sealed claim form, particulars of claim for possession and witness statement of Miss Evans and exhibits in a sealed waterproof sleeve and securely affixed them to two wooden stakes placed on either side of the main entrance to the land. Mr Webb says that he also made contact with an adult female who refused to accept service of documents, and therefore they were placed at her feet. I have photographic evidence at exhibit A to a later, and second, witness statement of Mr Webb, dated 19^th November 2014, of the service at the land by fixing stakes to the entrance to the protest site. There are three photographs in question, one showing the claim form and associated documentation affixed to a stake on the right hand side of the access gate, one showing those documents affixed to a stake on the left hand side of the access gate, and a single composite photograph showing the whole of the gate with the documents affixed to stakes on either side of the gate.

I am satisfied on the evidence that service was effected in accordance with the Civil Procedure Rules at about noon on Monday of this week. There has, therefore, been the two clear days’ service required by CPR 55. 6. Moreover there is clear evidence, in the form of Miss Helen Evans’s second witness statement, dated 19^th November 2014, that the existence of this hearing had come to the notice of at least certain of the protestors or protectors during the course of Monday 17^th November: see, in particular, paragraph 8 of Miss Evans’s second witness statement and the various postings on social networking sites and blogs which form part of exhibit HE2 to Miss Evans’s second witness statement. Indeed, a local councillor, Councillor Arfon Jones, of Wrexham County Borough Council, sent an email to the court at about 20 to 1 on Tuesday 18^th November referring to the fact that the previous day, bailiffs had tried to serve an eviction notice on unnamed camp protectors at Borras, Wrexham. He made reference to the fact that protectors and their supporters wished to oppose the issue of an eviction notice and felt that the case listed for Thursday 20^th November did not allow them sufficient time from what was described as “unlawful service” of the notice to the hearing for them to present a defence. The councillor also said that protectors and their supporters would wish the hearing to be in Welsh, as was said to be their right, and that the claim was within the jurisdiction of the Chancery Division of the High Court in Wales.

Because of references to what was described as an “unlawful eviction notice”, the original process server, Mr Webb, made a second visit to the site on 18^th November, Tuesday of this week, at about a quarter to 3. He had been directed to effect service of ten additional copies of the sealed claim form. He says that he placed those under the main gateway entrance to the site. He then describes what happened when he was proceeding to vacate the site. He says that an adult male pursued him to his vehicle and proceeded to climb up on the bonnet and roof and began to smash windows and dent bodywork. As he was in his vehicle, approximately 20 protestors surrounded the vehicle and Mr Webb felt that he had no choice other than to drive away slowly from the site, with the adult male still upon the roof of the van. Fortunately, the adult male seems to have suffered no harm because, after approximately half a mile, he jumped off the top of Mr Webb’s vehicle. Photographs showing damage to the vehicle, including damage to the windscreen, are exhibited at exhibit B to that second witness statement. In her second witness statement, Miss Evans explains that she had asked Mr Webb to deliver additional copies of the claim documentation to the camp site as it had been reported that the original documents had been thrown into the mud. Miss Evans relates that when Mr Webb attended at her offices following his visit to the site on Tuesday 18^th November, he was clearly very shaken and upset about what had happened, and described the incident to Miss Evans as “frightening”. The incident has been reported to the police. It has been pointed out to me that the present case is not in any way concerned with any issues of criminal damage, and that is entirely correct, although no doubt the police will investigate this incident.

Miss Evans’s second witness statement addresses the issue of service and also the issue of any suggestion that this claim should be transferred to a local court in Wales. In the course of her second witness statement, at paragraph 13, Miss Evans refers to an incident, also on Tuesday 18^th November, when a tracked digger and dumper, apparently from a local concrete works, was seen heading towards the protest camp and was stopped by police and turned away. Miss Evans relies upon that as evidence of an intensification of the occupation of the protest or protection site. During the course of this hearing, I queried with Mr Tom Roscoe (of counsel), who appears for the claimants, why there was the delay between the issue of the claim form on Wednesday 12^th November and its service at about noon on Monday 17^th November this week. Mr Roscoe explained that sufficient notice to comply with the rules had been given; and that the claimants and their solicitors were concerned that if more advance notice had been given, it would have encouraged more people to come on to the site. He said that that had been borne out by events since the notice of these proceedings had been given. For the defendants, it is pointed out that the delay in effecting service of the proceedings has given the claimant an advantage, and a corresponding disadvantage to the defendants. That is a factor which I must, of course, bear in mind.

When the matter came on for hearing at about 11 o'clock this morning, there were about 20 persons in court who are visibly in opposition to the possession claim. Only one individual has put himself forward to be joined as a defendant to the proceedings. He is Mr Brian Morgan. He has appointed a McKenzie friend, Miss Julie Ray, who has a law degree and has also completed the Bar Vocational Course. At Mr Morgan’s request, Miss Ray was allowed to address the court on his behalf, although I have given every facility to Mr Morgan (of which he has availed himself) to supplement Miss Ray’s submissions to the court on his behalf. Miss Ray has applied, first of all, to strike out the claim in its entirety on the grounds that service was not properly effected in accordance with CPR 55.6. I am satisfied that proper service has been effected, for the reasons I have already given. That is consistent with the photographic evidence of Mr Webb and the response to these proceedings on social media sites and elsewhere. Miss Ray’s second point was that there should be an adjournment of these proceedings for 28 days. She also submitted, with some encouragement from others within the court, that these proceedings should, once an adjournment had been granted, be transferred to the Chancery Division sitting in Wales. The relevant district registry is the Mold District Registry, although I understand that hearings are actually conducted in Wrexham itself.

I have established that His Honour Judge Milwyn Jarman QC, who is the Specialist Chancery Judge for Wales, was, in fact, in Wrexham last week and so is not sitting there this week, but that another Specialist Judge authorised to sit in the Chancery Division in North Wales, His Honour Judge Andrew Keyser QC, could hear this case in Wrexham during the first week of December. That is of relevance because I am told that certain of those present on the site are Welsh speakers. Had these legal proceedings been commenced in Wales, then the Welsh language might have been spoken by any party, witness or other person who desired to use it in accordance with section 22 of the Welsh Language Act 1993. I am satisfied, on the straightforward language of section 22, that the ability to use Welsh in legal proceedings does not extend to legal proceedings being heard in Manchester, which is, of course, in England, even though the proceedings relate to land in Wales.

There is express authority on the point in the form of the decision of the Court of Appeal in Williams v Cowell [2000] 1 WLR187. I have been taken by Mr Roscoe to two passages in the judgment of Lord Justice Mummery, at page 193 E and page 195 G. However, it is perhaps relevant to refer to what Lord Justice Judge had to say at page 200, between letters B and E. He says:

“The geographical location to which [section 22(1) of the Act] applies remains limited to Wales. It does not extend to legal proceedings in England, nor to proceedings heard in England which have some connection with Wales, for example, litigation in England over a contract made in Cardiff, or an appeal to the Court of Appeal from a decision of a court in Cardiff, or Swansea, or Mold. In other words, so far as proceedings taking place in courts in England … the option to use the Welsh language in accordance with section 22(1) of the Act of 1993 is not available. Naturally a Welsh speaker who cannot communicate or do justice to himself in the English language would be entitled to be provided with an interpreter and allowed to give his evidence in Welsh with an interpreter to translate the evidence for the court, but that is a matter of elementary fairness, certainly not a manifestation of any principle that Welsh and English should be treated on the basis of equality in England. It is impossible to construe the language used in this Act as extending to proceedings taking place outside Wales. That is not what it says.”

In the present case, I have noted that all of the postings on social media websites and blogs have been in English. The written literature posted outside the land itself, and relating to what is described as the Borras and Holt Community Protection Camp, is all in English, although the Welsh word “welcome” is also used. No one at this hearing has indicated that they do not understand English, and no one has sought to address the court in Welsh. The claimants’ solicitors had ensured that a Welsh speaking interpreter was available, although the court was able to release him at a relatively early stage of this morning’s hearing. I am satisfied that everyone who has wanted to do so has been able to fully understand the proceedings and to make himself or herself understood, although I do note that I was told that certain of the persons in occupation of the site who have not attended this hearing are Welsh, and that others who have attended here have done so from the Manchester area itself.

Had I been minded to adjourn these proceedings, I would have had to consider whether I should transfer them to the Mold District Registry of the Chancery Division with a view to them being heard in Wrexham, which, as I have indicated, could have been done in the first week of December. However, in my judgment, it is unnecessary, in the exercise of the court's case management powers, to take that course. This is the first hearing of a claim for possession against trespassers. At this hearing, the court may decide the claim, or give case management directions. By CPR 55.8 (2), where the claim is “genuinely disputed on grounds which appear to be substantial”, case management directions should be given, including allocation to a track. All I am concerned with today is whether this claim is “genuinely disputed on grounds which appear to be substantial”. Mr Morgan, through Miss Ray, has drawn my attention to the following points. First, the right to a fair trial in accordance with article 6 of the European Convention. Secondly, the overriding objective of the Civil Procedure Rules, which is to enable to court to deal with cases justly and at proportionate cost. That must ensure, so far is as practicable, that the parties are on an equal footing. It has been urged upon me for Mr Morgan and the other defendants that there has been no time to instruct a solicitor.

The object of those in occupation of the claimants’ land is to protect the land itself. Miss Ray has emphasised that this is a temporary occupation of the site for the purposes of its protection. Although during the day there may be a larger number of persons present on the protection site, they have, in fact, taken up a very small corner of the claimants’ field, and it is only a small group who are prepared to live, and are living, on the land in order to protect it. She emphasised that they have given up their comfortable home life in order to raise awareness of concerns about the fracking process. They entertain clear environmental concerns. Local geologists, in particular, have concerns about fracking taking place on this land: first, because of its constitution, which is of porous sandstone; secondly, because of certain fault lines; and, thirdly, because mining has taken place in this area and there are shafts and tunnels running below the land. I was shown an aerial photograph with various mineshafts on it, one of which is said to run under, or very close to under, the site of the protest. There are also concerns about the particular process that IGas will use, and the fact that once a well has been drilled, liability will pass to the land owner for the environmental consequences, to the exclusion of the drilling or operating company.

Mention has also been made of a past outbreak of Anthrax in the local area, which it is said can lie dormant for up to 40 years, and the risks that any disturbance of the land may create in that regard. Mention is also made of the fact that the site is said to be one of Special Scientific Interest and the effects upon the greater crested newt. Reference has also been made to the fact that this is a case where the views of the Local Planning Authority, who had voted by a substantial majority to reject an application for permission to frack on the land, have been overridden by central government - I assume in London rather than in Cardiff; however, it matters not: the Local Authority was against the fracking taking place. Miss Ray pointed out that the protection group, which has been growing in number and support, is in the course of obtaining scientific evidence about the nature of the fracking process which casts doubt upon its merits and suggests that the financial gains are far outweighed by the damage that would be caused. The protection group are hoping, in due course, to be able to bring an action to stop what was described as: “This travesty of fracking.”

Perhaps more pertinently to the instant litigation, Miss Ray indicated that the farmers had been told what was going on and had not raised any express objection to it. Miss Ray recognised that the farmers’ hands had, to some extent, been tied. Having signed a contract with the exploration and fracking company, she made the point that the water under the land, and also the air, belonged to the community as a whole. She also drew attention to the volume of traffic - and heavy traffic at that - which would be there if fracking were to go ahead. Mr Morgan emphasised that once the present issues had been resolved, the protestors would take down all of the buildings on the site, remove everything from it, and clear up the site. He emphasised that they were there to protect the environment, and not as long term occupiers of the land. Miss Ray submitted that it had been excessive and unnecessary to issue the proceedings in the High Court rather than the County Court, and that that had led to an increase in costs which was unnecessary.

Miss Ray said that she had not had a proper opportunity to read all of the documents in the hearing bundle, nor had she been given any opportunity to digest the relevant case, and other, law. She emphasised that the claimants had left it almost to the eleventh hour to effect service of the proceedings, and that that had left the defendants at a disadvantage, and given a forensic advantage to the claimants. She said that the camp had been given implied rights of access. The farmers had moved their cows across the fields and had never indicated their dissatisfaction with the existence of the camp, which took up only a very small corner of the actual field. There had been insufficient time to prepare a proper defence to the claim. She invited the court to adjourn the matter, and possibly also to transfer it to a Welsh court. The issue of fracking was said to be a controversial one about which concerns were increasing. If this possession claim were to be allowed, it would give a green light to fracking on other land, which would be an absolute travesty. It was pointed out that the state of Texas, which was where fracking had started, had now banned fracking because of concerns about water contamination and the flaming of methane gas. At the conclusion of her reply, Miss Ray acknowledged that, unfortunately, the protectors had not got the law on their side.

Having satisfied me that there had been due service, Mr Roscoe proceeded to satisfy me that the claimants had established their title to the land which is the subject of this possession claim. Mr Roscoe acknowledged that the local County Court was in Wrexham; but provided the requirements of paragraph 1.3 (3) of Practice Direction 55A were satisfied, it was open to the claimants to issue their proceedings in the High Court; and there was no geographical restriction on where such proceedings could be brought. They could have been initiated in London, although Manchester was chosen because it was likely to be more convenient for the defendants, even if not for Mr Roscoe (who has had to travel up from London). I am satisfied, on the evidence, that there was justification for issuing these proceedings in the High Court. This is a claim against trespassers; and I am satisfied, on the evidence, that there is a substantial risk of public disturbance, and also of serious harm to persons or property, which properly requires immediate determination. Had these proceedings been issued in the Mold District Registry, they could not have been heard in Wrexham until the first week of December. The alternative for an earlier hearing would have been to go to Cardiff, which would have been more of a disadvantage to the persons in occupation of the site than a hearing in Manchester.

I am satisfied, as I have said, that service was effected. I am also satisfied that Mr Roscoe is right to say that more people might have been encouraged to come on to the land had more advance notice been given. That is consistent with the state of the evidence before the court. I am satisfied that sufficient notice has been given within the requirements of the Civil Procedure Rules. I am satisfied that the defendants have had sufficient notice of today's hearing. I am satisfied that they have had sufficient notice to enable them, if they were able to do so, to put forward at least some minimal evidence to show that this possession claim is “genuinely disputed on grounds which appear to be substantial”. Mr Morgan and Miss Ray have made reference to various articles of the European Convention on Human Rights. I have already mentioned article 6 (the Right to a Fair Hearing). Reference has also been made to article 8 (the Right to Respect for Private and Family Life), to article 10 (the Right to Freedom of Expression), and to article 11 (the Right of Freedom of Assembly and Association). However, there is also the claimants’ right, under article 1 of the first protocol (their right to free enjoyment of their possessions, including their land). I have considered, first, whether there is a genuine dispute on substantial grounds relevant to the claimants’ claim that the defendants are trespassers. I am not at all satisfied that any genuine dispute to the possession claim has been raised. There is simply no evidence before the court that there was any consent by the claimants to the occupation of their land, of which they now complain, sufficient to prevent the claimants from bringing the present claim for possession. As Mr Roscoe submitted, any suggestion of an express, or even an implied, licence or consent, is really fanciful on the evidence that is before the court. I can well understand the reticence on the part of the claimants to challenge the occupiers expressly and in direct terms; but there is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back.

So far as any defences under the Human Rights Act are concerned, and the European Convention, the matter has been fully considered by His Honour Judge Pelling QC (sitting in this District Registry) in the case of Manchester Ship Canal Developments Ltd v Persons Unknown [2014] EWHC 645 (Ch). For the reasons that were set out in his judgment in that case, and in particular paragraph 34 (relating to articles 10 and 11) and paragraph 47 (relating to article 8), there is simply no prospect of establishing any defence to the possession claim on convention grounds. I am satisfied that this is not a case where it can be said that the claim is “genuinely disputed on grounds which appear to be substantial”. That would be the case even if more notice had been given of this hearing, that has, in fact, been given in compliance with the rules. The court is not here concerned with the merits or otherwise of fracking. That is a matter in the political sphere; and there may be issues as to whether it should remain in the local, rather than the national sphere; but, again, that is not a matter for this court. Miss Ray, I am afraid, was right when she said, at the end of her address, that, unfortunately, the defendants simply have not got the law on their side.

Therefore, for those reasons, I do not consider that anything would be gained by any adjournment of these proceedings; and I will therefore make an order for possession in the terms of Mr Roscoe’s draft, subject to certain amendments I have already discussed with him. The order will require the defendants to give possession of the land known as Borras Head, Borras, Wrexham, shown edged red on the plan attached to the particulars of claim (which will be the plan attached to the order) after 11.59 pm this Friday, i.e. tomorrow, 21^st November 2014. That will give the protestors, or protectors, the opportunity to leave the site of their own free will before the possession order can be enforced. I will include a direction that the defendants shall, prior to, and at the latest upon, giving up possession of the land, remove from the land all tents, equipment and rubbish of theirs; and that the claimants shall be entitled to dispose of any items remaining after possession is delivered up.

Given that I am not allowing this order to be enforced before Saturday of this week, it is reasonable to give permission, under CPR 83.6 (2), to enforce a writ of possession on a Sunday. The original draft sought no order as to costs; but it had been made clear in Mr Roscoe’s skeleton argument that any individual who should be brave enough to apply to be joined as a party might be the subject of an application for costs. Mr Roscoe urged me to make an order for costs against Mr Morgan. He acknowledged that in another case, that of Thomas Andrew Wensley & Ors v Persons Unknown, I had, on 8^th October 2014, declined to make any order for costs against a defendant who had put herself forward at the first hearing of a similar claim. My reasons for doing so are set out in a judgment, the neutral citation to which is [2014] EWHC 3702 (Ch). Mr Roscoe invited me, on this occasion, to make an order for costs against Mr Morgan. Even if I was not minded to make a full order against him, he should be ordered to pay a proportion of the costs of the proceedings. He could, after all, seek a contribution from any other persons in occupation of the land, although I suspect that that is something that lies in the realms of fantasy rather than reality.

Mr Roscoe submitted that it would, effectively, be wrong in principle to allow Mr Morgan to make representations against the making of a possession order, yet then to relieve him from any responsibility from the costs of legal proceedings. After all, even though he might not have been identified before this hearing, he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings. There should be an award of costs, or at least a proportion of those costs, to reflect Mr Morgan’s responsibility for the need to bring these proceedings. I accept that at some time in the future, perhaps in the near future, in order to discourage similar invasions of land, it may become appropriate to make an award of costs against any defendant brave enough to put himself forward as a named defendant. However, it does not seem to me that it would be right to do so on this occasion. I just set down this marker: that in the future, the court may not be prepared to take such a lenient view. But in the present case it is quite clear that the claimants have had to bring these proceedings. As in the earlier case I have mentioned, the costs of today have been incurred in any event, and have not, in my judgment, been materially increased by Mr Morgan putting himself forward as a named defendant to advance the case of those opposing a claim for possession. It may be that in the future, those who take a similar stance will be at the receiving end of an order for costs in favour of the claimants; but it does not seem to me that it would be right to do so on this occasion. I say that particularly in view of the fact that, whilst I understand the reasons for doing so, the claimants did delay slightly in effecting service of these proceedings and have thereby, as Miss Ray said, put the defendants at a little more of a disadvantage than might otherwise have been the case. As a result, Mr Morgan has not had more than the bare minimum of two clear days to reflect upon his position or to seek legal advice.

Therefore, in the circumstances of this case, it would not be right to visit Mr Morgan with an adverse costs order. So I will simply reproduce the position as it was in the costs order submitted by Mr Roscoe and say no order as to costs. Those are the terms of my order and my reasons for it.