Practice and procedure – Trespass – Injunction – Appellant local authorities applying for interim and final injunctions against persons unknown – High Court holding that court could not grant final injunctions preventing persons unknown and unidentified at date of order from occupying and trespassing on local authority land – Whether judge erring in law – Appeal allowed
This appeal arose in the context of a number of cases in which local authorities sought interim and sometimes final injunctions against unidentified and unknown persons who might in the future set up unauthorised encampments on local authority land (newcomers).
The High Court held that the effect of previous decisions was that, while interim injunctions could be made against persons unknown, final injunctions could only be made against parties who had been identified and had had an opportunity to contest the final order sought, notably the Court of Appeal’s decision in Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 202; [2020] PLSCS 37; [2020] 1 WLR 2802 and the Supreme Court’s decision in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6; [2019] 1 WLR 1471: [2021] EWHC 1201 (QB).
Fifteen local authorities (the appellants) appealed, contending that the judge was wrong and that, even if that was what the Court of Appeal said in Canada Goose, its decision on that point was not part of its essential reasoning, distinguishable on the basis that it applied only to so-called protester injunctions. In any event, that decision should not be followed because it was based on a misunderstanding of the essential decision in Cameron, and was decided without proper regard to the Court of Appeal decisions in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658, Ineos Upstream Ltd v Persons Unknown [2019] EWCA Civ 515; [2019] 4 WLR 100 and Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12; [2020] EGLR 10.
The central question was whether the judge was right to hold that the court could not grant final injunctions against newcomers.
Held: The appeal was allowed.
(1) The judge was correct to hold that the legal landscape in proceedings against persons unknown had transformed in recent years. However, none of the earlier authorities recognised a fundamental difference between interim and final injunctions. There was no reason that the court could not devise procedures, when making longer-term persons unknown injunctions, to deal with the situation in which persons violated the injunction and made themselves new parties, and then applied to set aside the injunction originally violated: where newcomers knowingly violated injunctions granted against persons unknown they automatically became parties and there was no need to join them to the action: Gammell followed.
The judge was also correct to state, as the foundation of his considerations, that the court undoubtedly had the power under section 37 of the Senior Courts Act 1981 to grant an injunction that bound non-parties to proceedings. While such a remedy was exceptional, the courts should not seek to cut down the breadth of the provision by imposing limitations on the types of cases to be considered.
Section 37 was a broad provision providing expressly that “the High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so”. The courts should not cut down the breadth of that provision by imposing limitations which might tie a future court’s hands in types of case that could not now be predicted.
Furthermore, the judge said that it was important to identify all defendants before trial, because a final injunction should be seen as a remedy flowing from the final determination of rights between identified parties. But that ignored the CPR part 8 procedure adopted in unauthorised encampment cases, which rarely, if ever, resulted in a trial.
(2) The Court of Appeal’s decision in Canada Goose was both inconsistent with the earlier Court of Appeal decisions in Gammell and Ineos, and made without proper regard to previous binding authority, such that the court was not bound to follow Canada Goose in the present case. Further, the Supreme Court’s decision in Cameron had been misunderstood: it did not preclude a newcomer to the proceedings becoming a party to those proceedings even after final order by doing the prohibited act with knowledge of the prohibition. Accordingly, as regards persons unknown injunctions as against newcomers, the position of Gammell and Ineos was restored, and appellants might now seek both interim and final relief against those defendants who were both unknown and unidentified at the time the order was made.
It was clear that Gammell had decided, and Ineos accepted, that injunctions, whether interim or final, could validly be granted against newcomers. Newcomers were not any part of the decision in Cameron, and there was no basis on which to suggest that the mechanism in Gammell was not applicable to make an unknown person a party to an action, whether it occurred following an interim or a final injunction. Accordingly, a premise of Gammell was that injunctions generally could be validly granted against newcomers in unauthorised encampment cases. Ineos held that the same approach applied in protester cases.
(3) In the present case, the judge was wrong to hold that the court could not grant final injunctions against unauthorised encampment that prevented newcomers from occupying and trespassing on land. While the procedure adopted by the judge was unorthodox and unusual in that he called in final orders for revision, no harm had been done in that the parties did not object at the time and it had been possible to undertake a comprehensive review of the law applicable in an important field. Most of the orders anyway provided for review or gave permission to apply. The procedural limitations applicable to injunctions against persons unknown were as much applicable under section 37 of the 1981 Act as they were to those made under section 187B of the Town and Country Planning Act 1990. The court could not and should not limit in advance the types of injunction that might in future cases be held appropriate to make under section 37 against the world.
Caroline Bolton and Natalie Pratt (instructed by Sharpe Pritchard LLP and Barking & Dagenham Legal Services) appeared for the 1st, 6th, 11th, 16th, 26th, 28th, 33rd and 34th appellants; Ranjit Bhose QC and Steven Woolf (instructed by South London Legal Partnership) appeared for the 7th and 12th appellants; Nigel Giffin QC and Simon Birks (instructed by Walsall Metropolitan Borough Council Legal Services) appeared for the 35th appellant; Mark Anderson QC and Michelle Caney (instructed by Wolverhampton City Council Legal Services) appeared for the 36th appellant; Marc Willers QC, Tessa Buchanan and Owen Greenhall (instructed by Community Law Partnership) appeared for the first three interveners; Richard Kimblin QC (instructed by Eversheds Sutherland (International) LLP) appeared for the 4th intervener; Wayne Beglan (instructed by Basildon Borough Council Legal Services) made written submissions for the fifth intervener; Tristan Jones (instructed by the attorney general) appeared as advocate to the court.
Eileen O’Grady, barrister
