Injunction renewal hearing – 12th July 2018

SHEFFIELD HIGH COURT, 12 July 2018

report by Sheldon Hall

New readers start here:

On 21 June, thirteen tree campaigners were sent letters by Sheffield City Council, asking them to sign an undertaking based on a reworked version of the injunction issued last summer and due to expire on 25 July, which SCC hoped to renew and extend for three years. They were invited to sign with a promise that if they did so they would face no legal costs. They had a week to decide how to respond. All refused to sign.

There were nine named defendants in the revised injunction application, four of whom actively opposed it in court while the other five merely declined to sign. The remaining four had been sent the injunction papers but were not officially named as defendants. SCC repeatedly failed to respond to requests from the campaigners’ legal teams to clarify the status of these others, deemed ‘persons unknown’.

Got that? Good.

The second day of hearings began with a private meeting of the two legal teams in offices at the Town Hall. If the entire negotiations had taken place there, the taxpayer could have been saved a bill estimated at £75,000.

Instead, a lengthy process of what co-defendant Paul Brooke described as ‘obscene horse-trading’ took place on court premises – but mostly not in the courtroom. By my count, proceedings before the judge occupied barely an hour across the two days. Only Sheffield City Council can say why it refused campaigners’ repeated requests to settle the matter beforehand and instead employed two London barristers at huge public expense which it will not get back.

The Ealing-comedy air of the situation was beautifully illustrated at the pre-hearings rally, when two of the defence lawyers pulled up on a pushbike. No taxis or limousines for Paul Powlesland and Ben Manovitch – a bicycle built for one, but ridden by two, was good enough.

Inside the courtroom, the waiting began again. The minutes and hours ticked by even more slowly than yesterday, when at least observers had been excited to know what was going on and indulged in much speculation. Now we knew, and it wasn’t exciting at all.

Some incidental highlights of the day:

– Conscientious and fair-minded council officer Paul Billington spilled water over his desk and had to mop it up with tissues. The spillage left an unsightly stain on the desk covering.

– Mr Powlesland set hearts fluttering by flashing the waistband of his knickers at the public gallery. I don’t remember this happening in RUMPOLE OF THE BAILEY.

– Conscientious and fair-minded council officer Paul Billington ate a green apple (as indeed he also had yesterday), disposing of the sticky label out of sight below his desk.

– The unexpected sound of a knock – usually the signal to rise for the judge – caused everyone in the courtroom to snap into position in anticipation of His Honour’s appearance. It was a false alarm, and we all relaxed.

– Conscientious and fair-minded council officer Paul Billington was given a talking-to by a security guard about his use of a mobile phone inside the courtroom. Muted applause from the public gallery.

His Honour Judge Graham Robinson was first called at 11.02am. Katharine Holland QC, representing SCC, opened by pointing out a formatting error in the layout of the draft injunction, which could have caused a misunderstanding. There followed a discussion about the three categories of defendants: the four who had actively defended, the other named five, and ‘persons unknown’.

The business of the court largely having been settled off-stage and no further challenges to the application having been made, His Honour Robinson asked the barristers for the four defendants who had challenged the application, Owen Greenhall and Mr Powlesland, whether they wished to remain for the rest of the proceedings, as there was essentially nothing left for them to do; they elected to stay. The judge also identified those defendants present who had not agreed to sign it; Simon Crump reminded him that he should be referred to as Dr, not Mr, Crump, and the judge – a cheery, jovial sort of fellow – apologised for his error.

Ms Holland proposed to guide His Honour through her skeleton argument as it applied to the non-signatories, and referred to the reading that had been provided for the judge. ‘I’ve had plenty of time to do that, thank you!’ he noted. There was no need to refer in detail to any part of the evidence that had been submitted, including the statements made by Darren Butt and Paul Billington, but Ms Holland said that it showed the ‘continuing need for injunctive relief’.

His Honour then stated that he was not going to ‘draw any adverse inferences’ about anyone who had refused to sign the new injunction, as it was ‘substantially different’ from the one originally awarded by Justice Males last year. This is a point he would return to more emphatically in his closing statements later in the day.

Ms Holland said that the application for a revised injunction had come about because changing circumstances had shown that they were necessary to preserve the intentions of the original injunction. She itemised some of the changes that had been agreed to the first draft of the new injunction. These included the stipulation that slow-walking and other methods of delaying contractors could be used for up to 20 minutes at a time in any given area on any given day. The definition of a safety zone excluded action taking place on private property. Ms Holland also noted that the prohibition on ‘encouraging’ forbidden activities did not extend to general words of encouragement and support for the campaign posted on social media.

His Honour stated that there was no need for him to intervene in the form of the injunction that had been agreed, and that he granted the injunctive relief sought. It was desirable to provide the injunction document as a single file – a combined order – rather than separate ones for the different categories of defendant. The court (which had been booked only for the morning session) was then adjourned for more than two hours while the revised injunction was typed up and printed out.

Proceedings resumed at 2.16pm, when His Honour brought out four copies of ‘the draft’ for the lawyers to proofread. Instructions given, he left again at 2.18pm. The two teams of lawyers then busied themselves checking the text, pens poised for corrections. The draft duly annotated and resubmitted, the Clerk of the Court returned at precisely 3.18pm with newly printed copies of the agreed ‘final’ version. But it proved not to be: defendant Rebecca Hammond noticed that her name had been omitted from the front page, while that of another, Graham Turnbull (not present in court), had been misspelled. The copies were collected in again.

His Honour Judge Robinson took his seat for the last time at 3.25pm. He thanked everyone for the courteous way in which they had conducted themselves over the two days. He reiterated the point made previously by Justice Males: that the court expressed no view one way or the other as to the merits of the tree-felling programme or the tree campaign. He was there only to adjudicate, but in this case his role had been more like that of a mediator. He commended both parties for demonstrating what could be achieved through negotiation.

Most important was this closing observation: ‘If I may say so, the defendants who did not take an active part were **eminently justified** in not signing the original undertaking.’ (My emphasis.)

Council representatives had asked the defendants and their team if they could release a joint press statement. Campaigners agreed on condition that the statement stipulated that the pause in felling would continue until formal mediated talks had been arranged. SCC could not guarantee that, so there was no joint statement. Once again, the council had snatched defeat from the jaws of victory.

Outside the court, co-defendant and STAG co-chair Paul Brooke instead made his own statement on behalf of the other defendants. Courtesy of Mr Brooke, I reproduce it below in full:

“Thirteen people were threatened with huge court costs to force them to sign an injunction.

Thirteen people refused to be bullied. Collectively we opposed the application and faced £75K in costs.

They applied for three years, with a ban on legitimate slow-walking and delaying felling crews.

They wanted to curtail ordinary people’s freedom of speech by preventing people posting encouraging comments on social media.

They wanted to stop people standing on their own property to defend their trees.

The outcome is that they spent £75K on horse-trading a wording with us. We had asked them to do that for free before starting a court process.

The new injunction makes it clear that anything that happens on private property is not restricted by the injunction.

The Council agreed that we can slow-walk and delay felling every day.

The term is not three years but eighteen months.

The judge said the terms are a fair and proportionate balance between the competing interests of the parties.

NONE of us have signed the undertaking but the four of us [who defended] will obey the injunction.”

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