Interim relief in Epping hotel case overturned by Court of Appeal

The Court of Appeal has overturned the grant of interim relief in the case of the hotel in Epping where the council sought, and at first obtained, an order for the people being accommodated in the hotel to be moved out by 12 September 2025. The Home Secretary succeeded in being added as intervener this time. The case is Somani Hotels Ltd v Epping Forest District & Anor [2025] EWCA Civ 1134. I wrote up the High Court’s grant of interim relief two weeks ago.

Intervention by the Home Secretary

We have an explanation, of sorts, for the late and failed attempt by the Home Secretary to intervene in the High Court proceedings. The hearing took place on 15 August 2025 and the Home Office had been sent papers on 12 August 2025, the day after the application was issued, by CTM (the accommodation contractor) and not by Epping Forest District Council.

It was submitted on behalf of the Home Secretary that this late notice, and “because it was unclear until the application became the subject of public press reporting what the live issues would be” were the reasons for non-attendance at the hearing. The Home Office only sought to instruct counsel on the day and first emailed the court at 3.18pm on Friday 15 August 2025. The email was not received by the judge until after the hearing.

On Monday 18 August 2025 at 5.23pm an application was sent to the court for the Home Secretary to be joined as a party, advance notice having been given to the court earlier that day. The application was made orally immediately prior to delivery of the judgment on 19 August 2025 and was refused.

The High Court judge concluded that this was a straightforward alleged breach of planning control case and that it was not necessary to join the Home Secretary who could provide evidence to Somani if needed. The judge was also critical of the lateness of the Home Secretary’s involvement and said that she had had sufficient time to get the material before the court for the hearing on 15 August 2025.

The Court of Appeal said that there was “little doubt” that Epping should have notified the Home Secretary of its intention to issue proceedings in line with the pre action protocol. The court went on to say that the Home Office “should have taken prompt and effective steps to seek party status and/or intervene. It did not.”

However the court concluded that the High Court had erred in several respects, including:

His finding that he could “resolve all matters of dispute in the proceedings” without the engagement of the SSHD as a party (see [60] above) failed to have any or any adequate regard to the range of “issues” which would be likely to arise if the injunction were granted which directly impacted on the SSHD; these included but were not limited to the significant practical challenge of relocating a large number of asylum seekers in a short space of time, in respect of which the SSHD uniquely had a statutory responsibility.

The Court of Appeal said that the High Court judge’s recognition of and apparent attachment of considerable weight to the Home Secretary’s statutory duty to provide asylum accommodation undermined his finding that there was no need to add the Home Secretary to the proceedings. Refusing the application denied the judge of “the opportunity to take a wider look at the range of public interest arguments which could or would have been likely to be advanced to inform the “balance of convenience” test”. This included the public interest in UK compliance with international humanitarian and legal obligations as well as the public interest in avoiding destitution among those in need of asylum support.

The Court of Appeal also picked up on the point that Somani had said that the Home Secretary had advised that the hotel did not need to submit an application for a temporary change of use. The court said it was “surprising that this in itself did not pique judicial interest into the role of the SSHD in the central dispute about planning control, and accordingly the “desirability” of joining her into the litigation”.

The court gave further examples of where the judge had fallen into error and allowed the Home Secretary’s appeal, adding her as a party to the ongoing High Court proceedings. It was noted that the wrongful refusal to add the Home Secretary undermined the judge’s conclusion on the interim relief decision.

Interim relief

The main point I am going to highlight here is that, on the matter of the High Court judge concluding that the far-right protests should be given some weight when considering the grant of interim relief, the Court of Appeal found force in the council’s submission that:

if an outbreak of protests enhances the case for a planning injunction, this runs the risk of acting as an impetus or incentive for further protests, some of which may be disorderly, around asylum accommodation. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness. The judge does not appear to have considered this risk, perhaps because he had denied himself the advantage of hearing submissions on the merits from counsel for the SSHD.

The court also criticised the conduct of the council in this matter, highlighting that they had been aware since February this year that the hotel was again being used as asylum accommodation and that they had taken no steps in response to Somani’s letter of 15 May 2025 saying that the Home Office had advised that there was no need to make a planning application.

Then, on 11 August 2025 the council made “an application with 1600 pages of supporting material, supported by a detailed skeleton argument prepared by leading and junior counsel”. Somani were given the bare minimum of three working days’ notice to respond.

The council had apparently taken the decision to proceed with the application on 5 August 2025 and the court said that a letter before claim should have been sent then at the latest.

The court concluded that the High Court judge’s approach to the balance of convenience exercise was seriously flawed and so permission to appeal was granted and the appeals were allowed, setting aside the grant of interim relief.

Conclusion

Whether this is enough to discourage other councils from attempting the same as Epping remains to be seen. I am sure any legal advice being given to councils will include a thorough section on the risks of an adverse costs award.