This case involved the ancient tort of public nuisance. Such a claim is addressed to behaviour which inflicts damage, injury or inconvenience on all members of a class who come within the sphere or neighbourhood of its operation. As Linden J explained, a person may bring an action in their own name in respect of a public nuisance
when they have suffered some particular, foreseeable and substantial damage over and above what has been sustained by the public at large, or when the interference with the public right involves a violation of some private right of the claimant. A local authority may also institute civil proceedings in public nuisance in its own name pursuant to section 222 Local Government Act 1972: see Nottingham City Council v Zain [2002] 1 WLR 607.
The case heading (partial screenshot above) provides a pretty comprehensive list of activities that would come within the category of “public nuisance”. I recall John Spencer’s immortal words from his article in the Cambridge Law Review on the subject in 1989:
Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common scold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.
So as you can see, this tort encompasses quite a range of human enterprises.
But the problem is this is a civil action with all its attendant hurdles. The Council applied for an order from the court to prohibit, amongst other things, the consumption of alcohol in the park. Thornton J heard the original application and had issued a temporary order banning the entry of members of the public to London Fields and the consumption of alcohol for a period of days until the return date of the application, 9th of July.
The type of injunction which the Council was seeking was one which applies on an temporary basis, pending a trial of the dispute between the parties. Applying American Cynamid principles, the court is asked to decide whether it should make orders which preserve the status quo in some or all respects so that justice can be done between the parties at trial. Having established that the matter was certainly triable, the main question for Linden J to resolve was whether claims against “persons unknown” in private law litigation such as this were viable, given the difficulties in service of the claim form and the nebulous nature of groups involving “newcomers” after the alleged tortious activity had been identified.
The problem with the “Thornton order”, as Linden J saw it, is that it addressed a wider class of people than were alleged to be committing a public nuisance; i.e. anyone who happened to be in London Fields at the time the order was in force. This was not a case where where the Council was accusing, and in any event could not accuse, all persons using London Fields of committing the tort of public nuisance.
I could not see how the proposed Order could apply to persons who are not, and are not intended to be, parties, still less to people who are unnamed and who may become subject to the Order simply by dint of visiting London Fields or merely walking across it to get from A to B.
There were also problems with defining the defendants in relation to their particular behaviour for the purposes of the tort of public nuisance.
the Defendants had to be people who “gathered” in London Fields for a specified purpose or who “gathered” and who did something which was said to be a public nuisance. It was not clear to me how this would work in relation to a person who, for example, left a gathering to defecate in the bushes and I did not see how this would apply at all to such a person who had not been part of any gathering at any stage, although I understood that the Council would still contend that they committed a public nuisance.
The original Order prohibited outright the consumption of alcohol in the area. Again, Linden J found this an unrealistically large catchment: any consumption of alcohol was intended to be caught, regardless of whether it accompanied any form of anti-social behaviour.
So, parents of a family which decided to spend a Sunday afternoon away from their cramped Council flat, having a picnic in London Fields with their children, could not have a glass of beer without being in contempt of court for breaching the proposed Order and liable to arrest without warrant. To make matters worse, even if they decided to drink lemonade they would be at risk of the same fate if a police officer or Council employee or contractor had reasonable grounds to suspect that there was vodka in it.
The judge did not accept that drinking alcohol, still less drinking liquid which a policeman or council officer reasonably believed to be alcohol, could even arguably be a public nuisance in itself. Therefore on this point alone there would be no triable issue that such a person had committed a tort, the application for interim relief would fail the first requirement of American Cyanamid.
it is one thing to prohibit a person who has, say, been harassing or assaulting another person from being within 250 yards of her address (Burris v Azadani [1995] 1 WLR 1372); but it is quite another to ban an entirely law abiding person from doing things which are lawful.
Linden J declined to amend the Order so as to prohibit the consumption of alcohol in conjunction with one of the other prohibited activities. This was bound to raise impossible problems of demarcation and definition.
He did however allow the prohibition on “threatening or using violence, or engaging in abusive behaviour towards any member of the public or any employee, agent or contractor of the Council who question or challenge behaviour”
He also (with some reluctance) concluded that a power of arrest should be attached in order to make the injunction more effective given the general nature of the conduct alleged (sleep disturbance from loud music; health hazards presented by public defacation) and “the evidence of the part which drink and drugs have played.”
He granted the Council an interim injunction (set out in the Order annexed to the judgment) but “only on the basis that there would be a trial and that this would take place in the near future.”
The service of the claim on Unknown Persons has been resolved by the following methods: service by posting of a Public Notice (which includes an email address from which the documents listed below can be requested, and a link by which the amended statements of case and other documents in the case may be accessed) in various locations in and around the Prescribed Area, and the posting of that Public Notice on the Claimant’s website and links to relevant documents on its Facebook and Twitter accounts. These, in Linden J’s view, were adequate steps to constitute service of the Claim Form.
Anyone living in the locality of London Fields may be interested in the map and the precise terms of the order appended to the judgment. The interim order and power of arrest will last until 4pm on Friday 16 October 2020, during which week there will be a further hearing of this order.
The Notice of Injunction is accompanied by this warning:
If you do not comply with this order you may be held in contempt of court and imprisoned or fined, or your assets may be seized.
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