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.
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