A black pensioner has won a racial discrimination case after a judge threw out a council’s unlawful ban on him playing dominoes with friends in a London square.
Westminster Council took Ernest Theophile, 74, and others to court last year, securing a temporary injunction banning social gatherings in Maida Hill Market Square.
The area is a popular place for members of the West Indian community to meet and play traditional games.
The council claimed Ernest and his friends had been playing too loudly and upsetting residents, but Ernest said enthusiastic playing is just a feature of West Indian culture.
The ban was later toned down, allowing Ernest and his friends back into the square, but with the threat of jail if they were caught ‘playing loud amplified music, drinking alcohol and shouting and swearing’.
Last month, Ernest won a ruling that the council did not take its duty to consider the racial equality rights of Ernest and his friends into account when seeking the injunction.
Now, a judge at Central London County Court, has completely thrown out Westminster Council’s injunction, handing victory to Ernest and his friends.
The council had previously disclosed it had received more than 200 complaints from local residents over anti-social behaviour, with at least one resident claiming they were forced to move home due to the racket in the square.
The neighbours’ complaints partly focused on the clatter and roar involved in playing dominoes, which is traditionally a source of passionate frustration and joy in Caribbean culture.
As a result council officers claimed there was an ‘anti-social’ element to the gatherings in the square.
But Ernest’s lawyers argued that even the toned-down injunction still had a massive ‘dampening effect’ on his freedom to enjoy the square and play his beloved dominoes properly.
His barrister, Tim James-Matthews, argued that the order – which carried the threat of prison if Ernest was found in breach – was ‘likely to be indirectly discriminatory’.
‘Although apparently “neutral” in application, the majority of those whose behaviour is constrained by force of the injunction share a protected characteristic: race,’ he added.
‘An injunction restraining the activities of a minority of black people in a public square where there is a theoretical power of arrest and sanction of imprisonment is indirectly discriminatory.’
In May, Judge Heather Baucher ruled that Westminster Council had failed to properly consider its ‘public sector equality duty’ before acting against Ernest and others in the square.
But the case returned to court this week when Ernest’s legal team successfully delivered a final knockout blow to the council’s bid for a full injunction.
Judge Baucher ruled that Ernest has an ‘absolute defence’ to the case brought against him and that the council’s attempts to show that it has complied with its equality duties were ‘retrospective’.
She while she did not think there had been ‘any bad faith’ on the part of the council, she said it had conducted and obtained injunction ‘without any legal basis’ and that it was ‘likely to be indirectly discriminatory’.
She ordered ‘summary judgment’ against the council – striking out its case before it even reached trial. The council must also pay the legal costs.
Ernest, whose family came to the UK from Dominica in the 1950s as part of the Windrush generation, said he and a group of elderly pals have been gathering at Maida Hill Market Square in north London for the past 12 years.
‘If you are West Indian, you just can’t play dominoes without making a bit of noise,’ he said.
‘It’s part of my culture to spend time playing dominoes and backgammon with other West Indian men my age in the community where I grew up.
‘Lots of people who I know at the square have mental health difficulties and are socially isolated, but they know that when they come to the square, they can relax by sitting on the benches and chatting to other people.
‘It keeps us healthy.’