Possession by way of interim injunction – a worrying precedent?

09 April 2020

The High Court has granted an interim injunction against a hospital patient, requiring her to give up possession of a hospital bedroom. In effect, the NHS Trust was granted possession by the “back door”, in a way which avoided the intended effect of CPR 51Z PD.

Perhaps more concerning, it was done on an application for an interim injunction (which the judge accepted would effectively be giving final relief), presented solely on the basis of medical evidence relied on by the hospital.

It may be thought that hospitals’ needs in light of COVID-19 have weighed heavily in the judge’s mind and, although the ultimate conclusion of the judge (that MB should be discharged from the hospital) was the correct one, it was reached prematurely in this case because of the pressures on the NHS as a result of the pandemic.

Background to the case

The claimant hospital foundation trust operated, among others, the National Hospital for Neurology and Neurosurgery.  The trust sought possession of a bedroom in the hospital from the defendant, MB, who was admitted there in February 2019.

The bedroom was in a ward for those requiring acute neuropsychiatry care for up to 28 days.  The claim was said to be urgent because, due to the COVID-19 pandemic, the bedroom was needed for other patients and because it was not in MB’s interests to remain in the hospital because of the risk of contracting COVID-19.  The trust said that MB could be discharged to accommodation provided by the local authority (in respect of which the MB had signed a tenancy agreement), who would also provide a care package.

CPR 51Z PD (brought into force as a result of COVID-19) provided that possession claims under CPR Pt 55 stayed claims for possession for 90 days.

The claim came before a judge, who permitted the hospital to apply for an injunction, which it did.

In resistance to the making of an interim injunction, MB contended that she had concerns about the care package offered. She insisted that she would not leave the hospital until she received a guarantee of 24-hour care for at least 1 year before review. She also argued that she would be at risk of harm, and to discharge her would be contrary to the foundation trust’s obligations under Art. 3, 8, 14 European Convention on Human Rights and ss.29 and 149 Equality Act 2010.

The only medical evidence before the Court came from the hospital.  MB submitted that the application should be adjourned to allow her to obtain her own medical evidence.

The judgment

Chamberlain J. granted interim relief to enforce the MB’s discharge from the hospital.

The judge noted:

  • As a matter of private law, the hospital was entitled to possession of the room as she had had a licence to occupy it, which had been terminated.  Therefore, she was a trespasser.
  • Ordinarily, the hospital would be entitled to an order for possession under CPR Pt. 5. But that was not currently possible because of the stay provided for by CPR 51Z PD, but 51Z did not affect claims for injunctions.
  • In general, a property owner is entitled to an injunction to enforce its rights as against a trespasser, and this applied to the hospital.
  • The effect of the grant of an interim injunction would be tantamount to final relief and the court should not grant it unless satisfied that there was clearly no defence to the action and it must have regard to the balance of convenience and other discretionary factors.
  • It would be wrong to grant injunctive relief if there were an arguable case that the hospital’s decision to stop providing in-patient care had been taken in breach of its public law obligations, and this could be relied on by way of a defence to private law proceedings.

The judge held, among other things, that the MB’s application to adjourn was refused because, among other things, if an NHS hospital’s decision not to provide in-patient care was taken on clinical grounds, it would not be open to a claimant, in judicial review proceedings, to adduce expert evidence with a view to impugning the clinical basis of the decision, as this would be beyond the limited circumstances in which expert evidence was admissible in judicial review proceedings.

Further, to the extent that there were issues in the claim to which independent expert evidence could be relevant, the COVID-19 emergency meant there was no prospect of obtaining such evidence within a reasonable time frame.  The application could be properly determined without MB having the opportunity to obtain her own expert evidence.

It was also held that it was clear there was no defence to the hospital’s claim for an injunction as, among other things:

  • MB’s care needs could be satisfactorily met with the care package on offer;
  • There was no breach of Art. 3, 8 or 14 ECHR;
  • There was no arguable claim under Equality Act 2010: the fact that there was no express reference to s.149 Equality Act 2010 did not matter; what mattered was whether the factors required to be considered have been considered and this had been done. To the extent that it was said that the decision was said to discriminate against MB on the basis of s.29 Equality Act 2010, any such discrimination was justified.  To the extent that the complaint was one of failure to make reasonable adjustments, the medical team had made every possible reasonable adjustment.

Even if the MB’s public law arguments had a real prospect of success, the balance of convenience would fall decisively in the foundation trust’s favour.

Read the judgment in full in University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882