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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We argue over Charlie Gard, but forget those spending whole lives caring for a disabled child

The everyday misery of care work is hidden behind abstract arguments over life and death.

“Sometimes,” says the mother, “I wish we’d let him go. Or that he’d just been allowed to slip away.” The father agrees, sometimes. So too does the child, who is not a child any more.

On good days, nobody thinks this way, but not all days are good. There have been bright spots during the course of the past four decades, occasional moments of real hope, but now everyone is tired, everyone is old and the mundane work of loving takes a ferocious toll.

When we talk about caring for sick children, we usually mean minors. It’s easiest that way. That for some parents, the exhaustion and intensity of those first days with a newborn never, ever ends – that you can be in your fifties, sixties, seventies, caring for a child in their twenties, thirties, forties – is not something the rest of us want to think about.

It’s hard to romanticise devotion strung out over that many hopeless, sleepless nights. Better to imagine the tragic mother holding on to the infant who still fits in her loving arms, not the son who’s now twice her size, himself edging towards middle-age and the cliff edge that comes when mummy’s no longer around.

Writing on the tragic case of Charlie Gard, the Guardian’s Giles Fraser claims that he would “rain fire on the whole world to hold my child for a day longer”. The Gard case, he argues, has “set the cool rational compassion of judicial judgement and clinical expertise against the passion of parental love”: “Which is why those who have never smelled the specific perfume of Charlie’s neck, those who have never held him tight or wept and prayed over his welfare, are deemed better placed to determine how he is to live and die.”

This may be true. It may also be true that right now, countless parents who have smelled their own child’s specific perfume, held them tightly, wept for them, loved them beyond all measure, are wishing only for that child’s suffering to end. What of their love? What of their reluctance to set the world aflame for one day more? And what of their need for a life of their own, away from the fantasies of those who’ll passionately defend a parent’s right to keep their child alive but won’t be there at 5am, night after night, cleaning out feeding tubes and mopping up shit?

Parental – in particular, maternal – devotion is seen as an endlessly renewable resource. A real parent never gets tired of loving. A real parent never wonders whether actually, all things considered, it might have caused less suffering for a child never to have been born at all. Such thoughts are impermissible, not least because they’re dangerous. Everyone’s life matters. Nonetheless, there are parents who have these thoughts, not because they don’t love their children, but because they do.

Reporting on the Gard case reminds me of the sanitised image we have of what constitutes the life of a parent of a sick child. It’s impossible not to feel enormous compassion for Charlie’s parents. As the mother of a toddler, I know that in a similar situation I’d have been torn apart. It’s not difficult to look at photos of Charlie and imagine one’s own child in his place. All babies are small and helpless; all babies cry out to be held.

But attitudes change as children get older. In the case of my own family, I noticed a real dropping away of support for my parents and disabled brother as the latter moved into adulthood. There were people who briefly picked him up as a kind of project and then, upon realising that there would be no schmaltzy ending to the story, dropped him again. Love and compassion don’t conquer all, patience runs out and dignity is clearly best respected from a distance.

All too often, the everyday misery of care work is hidden behind abstract arguments over who gets the right to decide whether an individual lives or dies. I don’t know any parents who truly want that right. Not only would it be morally untenable, it’s also a misrepresentation of what their struggles really are and mean.

What many parents who remain lifelong carers need is adequate respite support, a space in which to talk honestly, and the recognition that actually, sometimes loving is a grim and hopeless pursuit. Those who romanticise parental love – who, like Fraser, wallow in heroic portrayals of “battling, devoted parents” – do nothing to alleviate the suffering of those whose love mingles with resentment, exhaustion and sheer loneliness.

There are parents out there who, just occasionally, would be willing to set the world on fire to have a day’s respite from loving. But regardless of whether your child lives or dies, love never ends. 

Glosswitch is a feminist mother of three who works in publishing.