Birmingham City Council v Persons Unknown

Judgment Approved

HHJ WORSTER :

1. On 3 October 2016 I granted an application in proceedings issued by the Claimant (“Birmingham”) for an injunction prohibiting “street cruising” in its local government area; see [2016] EWHC [2389] (QB). The main provision of the order provided that:

(1) All persons are forbidden from participating in a street cruise within the Claimant’s local government area (known as the City of Birmingham) the boundaries of which are delineated in black on a map attached …

(2) It is also forbidden for anyone to promote, organize or publicise in any manner, any street cruise within the … [said] area.

A “street cruise” and “participation in a street cruise” were defined in detail in Schedule 2 of the order. The order was limited in duration to 3 years, and a power of arrest was granted pursuant to section 27 of the Police and Justice Act 2006

2. On 30 April 2018 I heard an application to add North Warwickshire Borough Council (“NWBC”) as 2^nd Claimant to these proceedings, to amend the Particulars of Claim, and to vary the order I made in 2016 (in effect) to extend it to cover the NWBC’s area on the same terms. The underlying merits of NWBC’s case for an injunction to restrain street cruising in its area are strong, and there are some pragmatic reasons for varying the existing order rather than granting NWBC a separate injunction in fresh proceedings. The question for me is whether I can add NWBC and vary the order as asked within these proceedings eighteen months post judgment, and if I can, whether I should exercise my discretion to do so.

3. In support of its application in 2016, Birmingham produced a substantial body of evidence which showed that street cruises on a number of the dual carriageways and other major roads in its area were causing a public nuisance. At paragraph 3 of the judgment I summarised that evidence in the following way:

The central attraction at these events is people racing cars and motorbikes on the highway. It is an activity which attracts not only those who come with vehicles to take part, but spectators, and some undesirable criminal and other unlawful activity, ranging from drug dealing to dropping litter. The danger the racing creates is all too well known, and is no doubt its attraction for some. The consequences for those who take part, or watch or just get caught up in the events and their aftermath can be terrible. But even without the dangers presented by fast cars and bikes racing each other, the noise and nuisance the activity causes to those who live in the neighbourhood, or wish to use the public highway for lawful purposes are readily apparent.

4. Since that time the problem of street cruises has continued. A number of applications have been made to commit people for breach of the order, and the evidence put forward by Birmingham in support of those applications indicates that whilst the order is having an effect, the problem continues and there is still a need for the order. Birmingham are about to provide the Court with some further evidence of the working of the order to comply with the mid-term review I directed in 2016, but I do not doubt that the problem remains a very real one.

5. NWBC rely upon the evidence Birmingham have adduced, and in addition have filed witness statements setting out the nature and scale of the problem in its own local authority area. In particular there is a statement from the Assistant Chief Executive of NWBC, and statements from the Police Officers who oversee the North Warwickshire West and North Warwickshire South beats. It is apparent from their evidence and from the details of the complaints recorded by the Police over the last 18 months or so, that the problem of street cruising on the highways in NWBC’s area is a significant one.

6. The problem is particularly acute around the border between NWBC’s area and Birmingham’s. Two major roads – the A446 and the A38 - run along or near that boundary, and the A446 crosses in and out of both areas. The other major road where the Police have reported problems is the A5, which is a straight fast road which runs across NWBC’s area from one side to the other. One advantage of varying the existing order rather than having a free-standing order made in fresh proceedings would be that there would be one order covering these “cross border” roads, rather than two. I can see that one order would make the job of enforcement in these areas a simpler task. Birmingham support NWBC’s application, and I have read the witness statement of David Bird of 12 April 2017 to that effect. Mr Bird has been much involved in the Council’s efforts to obtain and enforce the order I granted in 2016, and has a considerable experience and understanding of the underlying problems of street cruising.

7. The matter had been listed on an earlier occasion but was not heard. I set out my concerns about the procedural issues in the order adjourning the hearing. I was concerned firstly that it was too late to add a party or to amend the Particulars of Claim this long after judgment, secondly that the power to vary an order provided for by CPR Part 3.1(7) did not extend to varying a final order after judgment, and thirdly that the application was not so much a variation as the grant of new relief in favour of a different party. Mr Manning sought to address these concerns both in his skeleton argument and in his helpful submissions to me at the hearing on 30 April 2018.

8. The starting point is to consider the jurisdiction to make an injunction of this sort. The basis for the claim is set out at paragraphs 1-7 of the Particulars of Claim. In summary, Birmingham is a local authority within the meaning of section 270(1) of the Local Government Act 1972 and section 8(1) of the Localism Act 2011. It is also a local highways authority within the meaning of section 1(2) of the Highways Act 1980, and a responsible authority within the meaning of section 5(1) of the Crime and Disorder Act 1998. The first group of proposed amendments to the Particulars of Claim seek to plead NWBC’s standing as the local authority, highway authority and responsible authority for its area.

9. An authority falling within these definitions has certain statutory powers. The first of particular relevance is section 222(1) of the 1972 Act, which provides that:

(1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area—

(a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, and

10. The power is one which is to be exercised by reference to the interests of the inhabitants of the local authority’s area. The application of the section was considered by the Court of Appeal in Birmingham City Council v Shafi[2008] EWCA Civ 1186. The Court of Appeal concluded that the court did have jurisdiction to grant injunctive relief to restrain gang members from breaches of the criminal law or from causing a public nuisance, but considered it would be wrong in principle to do so because the conduct complained of could be restrained by the grant of an Anti-Social Behaviour Order; see in particular paragraphs [44]-[45] and [59]-[60].

11. The objection to the exercise of the section 222 jurisdiction in Shafi does not prevent an order being made in this sort of case, for the simple reason that it is far from clear whether an ASBO (or its statutory successor under the 2014 Act) would be available. HHJ Oliver-Jones QC (sitting as a High Court Judge) came to that conclusion when he granted Birmingham a car cruising injunction in earlier proceedings brought in 2010. His judgment is unreported, but it was available to me when I considered Birmingham’s application in 2016. At paragraph 15 he distinguished Shafi on the facts. That approach was approved and adopted by HHJ Owen QC (sitting as a High Cour Judge) when he granted similar orders in favour of the four Black Country authorities in 2014, and Solihull MBC in August 2016. I agreed with and followed that approach when granting the Birmingham order in October 2016.

12. The second provision of particular relevance is section 130 of the Highways Act 1980. Section 130 is headed “Protection of public rights” and provides that:

(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.

(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.

(3) Without prejudice to subsections (1) and (2) above, it is the duty of a council who are a highway authority to prevent, as far as possible, the stopping up or obstruction of—

(a) the highways for which they are the highway authority, and

(b) any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.

(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any roadside waste comprised in a highway for which they are the highway authority.

(5) Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient.

The terms of this duty are defined by reference to the highways for which the authority is the highway authority. Again, there is a geographical limitation.

13. By section 6(1) of the 1998 Act:

(1) The responsible authorities for a local government area shall, in accordance with section 5 …and with regulations made under subsection (2), formulate and implement—

(a) a strategy for the reduction of crime and disorder in the area (including anti-social and other behaviour adversely affecting the local environment); and

(b) a strategy for combatting the misuse of drugs, alcohol and other substances in the area; and

(c) a strategy for the reduction of re-offending in the area.

Again the duty is framed by reference to the local authority’s area.

14. Section 1 of the Localism Act 2011 confers a general power on a local authority to do anything that individuals with full capacity can do.

15. Finally this Court’s jurisdiction to grant injunctions is provided for by Section 37 of the Senior Courts Act 1981:

(1) The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.

(2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks fit

16. The 2016 application was made by Birmingham against “persons unknown”. One of the problems the authorities have faced in using a variety of other statutory powers is the difficulty in identifying Defendants. But plainly it was a case where there were unidentified “Defendants” who were engaged in causing this sort of public nuisance. The order defines “participating in a street cruise” so as to define the class of “persons unknown” against whom this order is directed. That reflects the decision in Bloomsbury Publishing Group Ltd and Rowling v News Group Newspapers[2003] 1 WLR 1633.

17. Given the problems of identification, Schedule 3 of the order provided for service by alternative means. These include press releases, placement on websites, twitter feeds, social media sites and Instagram accounts, TV and radio interviews, physical adverts next to some of the major arterial roads where this sort of activity is prevalent, articles in performance car magazines, a roving publicity van, issuing order notices to anyone stopped committing an offence, notices in police station custody suites, petrol stations, housing offices, bus stations, the NEC and Motorcycle Museum, in the car parks of major shopping centres, announcements at major football matches, and notices sent out through schools. It appears that this publicity campaign has been successful in bringing the terms of the order to the notice of the “Defendants”. Of the 14 persons who have been added as Defendants by name and against whom committal proceedings have been taken, none has yet alleged that they did not know of the order or that it had not been “served”.

18. Given that the order was made without notice, and served by these alternative means, it was important to incorporate into the order a mechanism by which a person served with a copy of the order could challenge it. Paragraph 5 of the order provided that:

Any person served with a copy of the Order may apply to the Court to vary or discharge it on 48 hours written notice to the Claimant.

Such a right is probably implied into an order such as this in any event, but it assists if it is expressed on the face of the order. As I understand it none of those who have been the subject of applications for committal for their breach of the terms of this order have applied to vary or discharge it.

19. The application notice filed by NWBC applies for:

(1) Permission to be added as a Claimant in these proceedings pursuant to CPR Part 19.2; and

(2) Variation of the order of 3 October 2016 … pursuant to CPR Part 3.1(7).

In his submissions Mr Manning emphasised that the order I made on 3 October 2016 was not an order which determined for all time the respective rights of the parties, but was in the nature of an order with continuing effect. Implicit in such an order is that it might be varied during its lifetime. For example, if the order ceases to serve any useful purpose, one or more of the parties may apply for it to be discharged. That would be so even if the order made no express provision that the parties should have “permission to apply”. In this case the order was granted for a period of 3 years, but with a direction that there be a mid-term review (which appears in the written judgment rather than in the order). The purpose of that review was to consider whether the order still served a purpose. If it did it would continue; if it did not then it might be discharged. The context for the court requiring a review of the injunction is the nature of its terms, and the lack of any Defendant who might bring the matter back to court in those circumstances. It is by way of being a safeguard. By the same token, the permission to apply ay paragraph 5 of the order provides a mechanism for a Defendant to challenge the order during its lifetime.

20. An application by a Defendant to vary this order would almost certainly be an application to cut down its scope. But Mr Manning also submitted that it would be open to the Court to extend the terms of the order on application during its lifetime. He referred me to the decision of Globe J in Harrods Limited and 2 ors v McNally and ors[2013] EWHC 1479 (QB). In that case Harrods applied for and were granted injunctions restraining the activities of protestors, some identified and some not, who were campaigning against the fur trade and the sale of fur by Harrods. An order was made in 2008 and amended and extended on four occasions between 2008 and 2013; see paragraph [3]. Globe J was hearing a fifth application which sought to extend the order to restrict the activities of the defendants in the vicinity of Harrods.

21. Globe J recognised that the Court might vary the order if there were a change of circumstances; see paragraph [9]. In that case, In that case what had been short term protests showed no sign of coming to an end, and the development of the surrounding streets in the meantime had changed the geography such that the existing terms no longer gave effect to the intention of the order. So Harrods applied to extend the exclusion zones which came into force when there was a protest, and for the order to be granted permanently. At [23] the Judge said this:

… I am satisfied that the order presently in force has been properly drawn up and represents a fair balance between the competing rights of the claimants, defendants and public. However, circumstances do change and a re-evaluation of the terms of the order may be justified, It was no doubt for this reason that the possibility of varying the order was built into its original terms.

He found that there had been a change of circumstances and approved the substance of the variations to the order sought. Globe J also extended the duration of the order. He described this as “ a much more substantial variation”. He took the view that the protest was likely to continue for an indefinite period. He refused to make a permanent order but extended the duration of the order by a further 5 years, noting that the rights of the defendants were protected by their right to vary or discharge the order; see paragraph [36].

22. The case illustrates that injunctions can be varied to take account of changes of circumstance. It is not clear from the judgment in the Harrods case whether the order as originally granted expressly provided for the variation of its terms or duration. The closing words of the passage from paragraph [23] would suggest that there was some such provision as to the terms. But even if there were no such provision it seems to me that it would be implicit in such an order that the court retained the power to vary it so that the order continued to have its intended effect. So for example, if the injunction obtained by Birmingham in 2016 had covered only a part of its area, and the granting of the order had simply displaced the street cruising into a neighbouring part of Birmingham’s area, Birmingham might apply to vary the injunction so as to include the newly affected area. A Court might well consider that all it was being asked to do was adjust the terms of the original order to meet the change in circumstances and give effect to the intention of the original order. The purpose of the order, whether it be for the benefit of the inhabitants of Birmingham’s area, or to prevent public nuisance on its highways, would be the same.

23. My concern is that the variation proposed in this case goes well beyond the sort of variation the court had in mind in the Harrods case, or which I am persuaded might be implicit in the making of an order. This is a case where a different local authority is asking to be joined into an existing action and for the order to be extended to cover its area, for the benefit of its inhabitants and to prevent public nuisance and crime on its highways.

24. CPR Part 19.2(2) provides that:

The court may order a person to be added as a new party if -

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

25. The problem of street cruising in NWBC’s area was referred to in the course of the application I heard back in 2016. As I understood it, Birmingham were encouraging NWBC to join in with it to obtain the injunction, just as the Black Country authorities had done. But it seems that it was not until after the grant of the order that NWBC indicated its willingness to proceed in that way. There is no explanation of why NWBC did not join in the claim at that earlier stage, nor why this application was not made until January 2018.

26. That said, Mr Manning made the point that had the application to join been made before judgment, the probability is that the court would have granted it. Why should it be different now? The issues affecting NWBC were part of the same problem, the facts each local authority relied upon were similar, some of the roads passed across the boundary between the authorities, there was the risk of a Birmingham only injunction displacing the street cruising into the neighbouring roads in NWBC’s area, and there was the simplicity of enforcing one order rather than two. As I indicated in the course of submissions, had the application been made before judgment I expect that I would have granted it.

27. The point, however, is that the application was not made before judgment. The matters in dispute in the proceedings before me in 2016 related to street cruising in Birmingham’s area, and the orders I made were for the benefit of its inhabitants and to stop crime and public nuisance on its highways. The problems in NWBC’s neighbouring area were not matters in dispute in the proceedings. It might be argued that there is an issue between NWBC and the Defendant to the Birmingham action – the class of unidentified street cruisers referred to as “persons unknown” - which is connected to that dispute and that it was desirable to add NWBC to resolve it. But that is a little tenuous.

28. I take the point Mr Manning makes about this injunction having a continuing effect, and that it might be varied to take account of changes in circumstance unforeseen at the time the order was made, but the point at which a Judgment is given and an order made carries a finality. Final orders are not lightly set aside, and claims are not to be regarded as enabling the grant of “rolling” relief.

29. Moreover, and as I indicated in the provisional views I expressed in the order of 1 March 2018, what is sought here is not so much a variation of the existing order, as the granting of new relief for the benefit of a new party. It is the commission of crime and public nuisance on the highways within the NWBC’s area and the effect upon its inhabitants which lies at the heart of the cause of action NWBC rely upon. I can see the practical connection between its case and Birmingham’s, but they are legally distinct.

30. Mr Manning made the point that to grant the application caused potential Defendants no prejudice. Because of the unusual circumstances, they would not have been deprived of an opportunity to object or to test the evidence at trial, for the mater was dealt with without notice. Once served they could take advantage of the safeguard provided by paragraph 5 of the order. What was sought was not a retrospective variation; the order as varied would only take effect once it had been publicised in the same comprehensive manner as the 2016 order.

31. That is so, but set against that is the fact that the procedure by which these orders are made is (whilst recognised) an exceptional one. The application is made without notice and the Court must consider it without the benefit of adversarial argument. The consequences of breaching the order may involve the loss of liberty. Consequently it seems to me that I should proceed cautiously.

32. What I am being asked to do is to vary an order for good pragmatic reasons. The alternative would be for NWBC to issue a fresh claim, which would largely repeat the material which is already before the Court and which I have considered. And I would add, it is a claim which I regard as meritorious and which I would have little hesitation in granting if made in fresh proceedings. The lack of prejudice to those affected by an order varied as sought means that there is a temptation to approach the matter on the basis that in all the circumstances it is in accordance with the overriding objective to grant the application.

33. My view at the end of submissions was that I should resist that temptation, but in deference to Mr Manning’s arguments I reserved judgment so that I could reconsider the matter. I have done so, but I remain of the view that if I have jurisdiction to make an order (i) joining NWBC as a Claimant and (ii) varying the terms of the 2016 injunction, I should not exercise my discretion to do so. The outcome NWBC seek can be achieved by issuing a fresh claim, and applying for an order in the same terms as the Birmingham order but covering NWBC’s area. If that applicant is made to me, I have already indicated that it would be favourably considered. But I see no good reason to stretch the application of the rules (or possibly to invoke the inherent jurisdiction of the court) when it is open to a party to bring its claim in the conventional way.

34. If fresh proceedings are issued, they may be referred to me on paper in the first instance, although any judgment must be given in public. A draft order will need to be prepared and approved. Again, the process of approving its terms must take place in public.

Postscript

35. Following the provision of the draft of this Judgment, NWBC issued fresh proceedings under Part 8 and applied for injunctions to cover its area in the same terms as the Birmingham injunctions (E90BM126). As I indicate in this judgment, the underlying case for an injunction has obvious merit, and having handed down this judgment I will give a further judgment granting NWBC a street cruising injunction in the fresh proceedings.