Trying to evict OccupyLSX

The court battle begins to clear St Paul’s Churchyard.

At 10.30 this morning at Court 25 in the Royal Courts of Justice, there will be a "case management conference" for the case formally known as Mayor, Commonalty & Citizens of the City of London v Persons Unknown (being persons taking part in a protest camp at St Paul's Churchyard, London EC4).

This is the start of an attempt by the Corporation of London to use legal means to evict the "Occupy LSX" protestors. No judicial decision on the eviction will be made today. The hearing is essentially for setting out a timetable for the litigation process. There is a good chance the hearing will be adjourned, given it is clear the Corporation has been planning this move for at least a couple of weeks, whilst the protesters have had only a few days to consider the complex legal case against them.

In a move exceptional for a normally opaque public body, the Corporation have published links to the relevant legal materials and have even uploaded their 88 page "proceedings bundle". This sudden effort at transparency is probably more for the tactical reason of allowing the Corporation to say that the protesters have access to the case against them than any Pauline conversion to freedom of information.

The Corporation's bundle makes interesting reading. Superficially it appears formidable, a combination of complicated statements of case, detailed plans, and various supporting witness statements and letters. However, a close reading indicates that the Corporation's position is not as strong as they would hope.

Many experienced litigators -- the lawyers who specialise in disputes -- would say that the shorter the claim form, the stronger the case. Indeed, if the Corporation thought it had an overwhelming case, it would need a proceedings bundle of only about ten pages: establishing title and powers under the applicable legislation, and perhaps the bare observation that the trespassers should get "orf the land" and clear the highway.

However, the Corporation has found that this matter is going to be a little more complicated than that: it has conceded that this is a Human Rights Act matter. Accordingly, as well as the mundane documentation of applicable legislation and of the property and allied rights that can be asserted, the bundle contains evidence seeking to show that there is a "pressing social need" behind its decision which means that clearing the tents is proportionate and legitimate interference with the protesters' rights of free expression and assembly. However, one may doubt that the undemocratic Corporation -- which makes its key decisions in closed meetings -- is actually well placed to make a good determination of the public interest in this (or any other) case. As a public body, the Corporation sorely lacks legitimacy in respect of public interest matters.

All the Corporation's evidence can, of course, be contested by the protesters. The Corporation cannot get their case through just on the nod. Each paragraph in the bundle can be controverted by evidence in the form of witness statements and other evidence. By going with an 88 page bundle, the Corporation opened itself to the potential of a complex and equally lengthy response which, if anything, will slow the litigation down. And this may be possible as the protesters are currently represented (without charge) by the outstanding lawyers John Cooper QC and Karen Todner.

Of particular interest in the bundle (pages 39 and 40) is a rather curious letter from St Paul's Cathedral, dated 11 November 2011, which contains some serious though unsubstantiated allegations. What makes this letter particularly odd is that the Cathedral itself is not taking any action at all against the protesters on the Cathedral's land. Therefore, one interpretation which can be placed on this letter is that the Cathedral is seeking to get the Corporation to do its work for it; that the Cathedral can get the benefit of legal action against the protesters whilst continuing to pose publicly as seeking reconciliation with the protesters. If so, then the Cathedral can be reasonably criticised as being rather two-faced in this matter. If the Cathedral actually believes what it says in that letter then there can be no good reason why it is not seeking to evict the protesters itself.

Any eviction is now not likely to occur until the new year. But it is not inevitable. The Corporation may fail to show that its intended action is a proportionate interference with the rights of the protesters. It may even fail to establish title to the relevant property, or that it has the powers and rights it purports to have under the applicable legislation. There is even the chance that this litigation may backfire on the Corporation, opening the institution to more unwelcome scrutiny. So a lot may be at stake in this legal case which starts today in the Royal Courts of Justice.

 

Update

The High Court hearing of the full case will start on 19 December 2011. OccupyLSX will need to submit their case by 12 December 2011. The judgment is likely to be reserved to the new year.

 

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Tim Shipman's Diary

The Sunday Times political editor on poker, pasta – and being called fat by Andrew Marr.

A couple of Saturdays ago, I was having dinner with my wife at Padella (which serves the best pasta in London) when the phone rang. It was an irate David Davis. “You’re reporting that a friend of mine has said Philip May wants Theresa to quit. It’s not true. I don’t even know Philip May.” I calmly explained that I wasn’t accusing him and I had his friend on tape. “Who was it?” he asked me. I wasn’t saying. “Well, it’s not bloody helpful,” the Brexit Secretary said before hanging up.

The following day, I woke up to watch Philip Hammond explain to the BBC’s Andrew Marr why his cabinet colleagues had leaked me details of how the Chancellor had branded public-sector workers as “overpaid”. “I don’t know who [Tim Shipman’s] sources are,” he said, after inaccurately suggesting that I was being fed information as part of some Brexiteer conspiracy to discredit the cabinet’s leading Remainer.

On Monday, I did an interview with Eddie Mair in the back of a beer garden in Ireland, where I’m playing cricket. In reality, the leaks had much more to do with colleagues irritated at Hammond’s sometimes grating behaviour. Word reaches me that he regards it all as very unhelpful. It seems odd after 16 years in political journalism to have to say this, but we’re not here to be helpful. It might make sense if our politicians gave us less to write about. Over the past three years, they have delighted us enough.

Back for seconds

Voter fatigue is a recognised problem. No one talks about journalist fatigue. We all hope that Theresa May rejuvenates on her Swiss walk (perhaps regenerating into Jodie Whittaker). Thanks to the decision she took when she last went walking, I’m facing the obliteration of another summer holiday writing a second political tome covering the period since my Brexit book, All Out War, up to the general election. What looked at one stage like the boring second album is now a rip-roaring tale of hubris and nemesis. When I asked for title suggestions on Twitter, there were plenty of votes for “Mayhem” and “Mayday”. The most imaginative was: “The Snarling Duds of May”. Sadly, it’s too long for my publisher.

Catching the big fish

The new-found attention from writing books is a double-edged sword. To my delight, then embarrassment, Andrew Marr referred to me twice as “the doyen” of the print lobby. “We keep trying to stop him,” Marr’s editor, the redoubtable Rob Burley, confided at a rival magazine’s summer party. The following week, Marr said: “The biggest fish in the pool, if only physically, is Tim Shipman…” I got a text from a special adviser friend asking: “Are you paying him?” I pointed out that Britain’s best-known political interviewer had just called me a fat bastard live on national television.

New blood

I make my debut on BBC2’s Newsnight alongside Ash Sarkar of Novara Media, one of the new websites that cheerlead for Jeremy Corbyn. She is nerveless and fluent in her mid-twenties, when I was a tongue-tied naif. People who get the Corbyn phenomenon are rightly getting more airtime. Off the air, she tells me that she’s a “libertarian anarchist” and then asks me where I live. “Are you going to smash it up?” I ask nervously. She smiles. Ash’s main concern is to paint the town red in the Saturday-night sense. A Labour MP draws attention to her Twitter biog, which concludes: “Walks like a supermodel. Fucks like a champion. Luxury communism now!” Bravo. I think…

Brexit gamble

I was greatly cheered by the induction in the Poker Hall of Fame of the late Dave “Devil­fish” Ulliott, the player who did the most to create the TV and online poker boom in Britain. Westminster has a few useful card sharps – Paul Stephenson, formerly of Vote Leave, among them – but I don’t know any politicians who play. By contrast, the US presidents Harry Truman, Dwight Eisenhower, Lyndon Johnson and Richard Nixon were all accomplished poker players.

When I worked in the US, I interviewed a member of Barack Obama’s poker circle when he was a state senator in Chicago. The cautious, composed and occasionally bold player he described was the mirror image of the politician we came to know. His Republican rival in 2008, John McCain, preferred the chaotic gambling of the craps table and his erratic campaign reflected that. Too many of the current cabinet seem to be dice men. What we wouldn’t give for Devilfish running the Brexit negotiations.

Blundering through

Anyone who has ever dealt with McCain would have been saddened by the news that he is suffering from brain cancer, but his resilience almost makes you feel sorry for the tumour. McCain is undoubtedly the most media-friendly politician I have ever met. When I travelled on his plane in 2008, he took every question from the foreign press pack and made us feel welcome. Through him, I also met Steve Duprey, the former boss of the New Hampshire Republicans. He was fond of explaining Duprey’s first law: “In politics, before considering malevolence, always assume incompetence.” I have had much cause to remind myself of that over the past three years.

Paranoid android

If you are looking for a summer read, I recommend Jonathan Allen’s and Amie Parnes’s Shattered, a great insider account of Hillary Clinton’s disastrous 2016 presidential election effort. It shows how a flawed candidate with little ability to connect with the public presided over a paranoid regime of advisers engaged in Shakespearean bloodletting that led to them coming a cropper when fighting a charismatic populist. On second thoughts, you could always wait to read my second book this autumn. 

Tim Shipman is the political editor of the Sunday Times. “All Out War” is now available in paperback (William Collins)

This article first appeared in the 27 July 2017 issue of the New Statesman, Summer double issue