The Civil Division of the Court of Appeal handed down its judgment in the case of Hall and Others v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817 on 16 July 2010. This was an appeal of an earlier decision by the High Court decision to grant the respondent an order for possession of Parliament Square and an injunction requiring those named defendants and “persons unknown” of the Democracy Village who had been in occupation of the site since 1 May 2010 to dismantle their structures and leave. The case also concerned a smaller and independent group engaged in protest prior to that date, most notable amongst them the second defendant Mr. Haw who had been a fixture at the site since 2001.

The decision of the Court was delivered by Lord Neuberger, Master of the Rolls, who dealt with, in turn, the two major stated fundamental legal issues, namely:

•whether the trial itself, and the possession orders and injunctions obtained therefrom complied with Articles 10 (guaranteeing freedom of expression) and 11 (guaranteeing freedom of peaceful assembly) of the European Convention on Human Rights in terms of proportionality; and

•whether the claim for possession was properly constituted.

Part 55 of the Civil Procedure Rules envisages an abbreviated procedure in relation to a possession claim against trespassers; while accepting that the gap between proceedings in the divisional court and the present proceedings had been short, Neuberger MR was satisfied no prejudice had been caused to the respondents. Similarly, no prejudice had been caused to those applicants who had applied for legal aid and had not had their applications processed in time, as they had been ably assisted by counsel acting for the first- and second-named defendants.

The Court noted that Articles 10 and 11 must be subject to considerations of, inter alia, public safety, the prevention of crime, etc. While accepting that the protesters’ desire to express their views in Parliament Square was within the scope of Articles 10 and 11, they had been in exclusive possession of the site to the extent that they denied others to right to protest, or simply to use the facility. The Court also accepted that the protesters had had over 70 days to make their point. The Court distinguished the present case from that of Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, where a protest camp was on a piece of land adjoining a highway, the protest being held one weekend every month only, and had been so held for over 20 years, during which no attempt had been made to enforce possession. Further, the Court rejected the argument that it ought not to grant an injunction because there were already criminal sanctions in place.

The Court then dealt with the question of whether the Mayor had the right to claim possession under sections 384 and 385 of the Greater London Authority Act 1999. The applicants argued that the respondent could not claim possession of the Square as he held no legal title to it, such being vested in the crown. In such a case, and having regard to case law, prior possession was not enough to ground such a claim for ejectment. Notwithstanding that, however, the Court concluded that it was implicit in sections 384 and 385 of the Act that the Mayor enjoy the right to initiate possession proceedings.

The final section of the judgment concerned the separate arguments raised by the second defendant Mr. Haw whose presence on the pavement outside the Palace of Westminster had not been challenged. He argued that the short length of time between the hearings was especially prejudicial to him as he had had insufficient time to introduce medical evidence, in particular to the effect that it would be made considerably more difficult for him to protest were he not to be permitted to sleep on the square itself. His circumstances were so different, held the Court, that his situation ought to have been considered separately, and thus the question of whether he should be subject to any order for possession and injunction was remitted to the High Court.

The Court thus allowed the appeal in part and made an order for costs.