The use of “persons unknown” injunctions, predominantly deployed in protest and local authority trespass cases, shows no sign of abating. This growing practice, once coined by the Court of Appeal as “something of a feeding frenzy”, has resulted in no fewer than 42 cases in the past 18 months.
Persons unknown injunctions seek to restrain unknown and unidentifiable individuals from performing the acts prohibited by the injunction, usually by reference to a defined geographical area.
In the public sphere, they are most often deployed by local authorities against unlawful traveller encampments.
In the real estate, energy and infrastructure sectors, they have proved a highly effective tool in combatting unlawful acts of direct action and acts of trespass.
As their use has intensified, so have the issues surrounding them.
Newcomer injunctions
Top of the list, in what must be the most highly anticipated judgment in this sphere, is the Supreme Court decision in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47; [2023] PLSCS 197, which was handed down on 29 November 2023.
The appeal was brought by a number of Gypsy, Roma and traveller charities in respect of injunctions obtained by 10 local authorities.
The court also heard interventions from those concerned with protest rights.
The principal question was whether the court has jurisdiction to issue both interim and final injunctions against persons who are unknown and unidentified as at the date of the order, and who have not yet committed or threatened to commit the acts which the injunction prohibits (known as “newcomer injunctions”).
While injunctions have been granted against “persons unknown” since 2003, it was not until the advent of injunctions against unknown individuals in the protest sphere (Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] PLSCS 37) that the court devised framework criteria for “newcomers”.
Newcomer injunctions have proved controversial because newcomers may find themselves in breach of an order (interim or final) without having been given notice of the proceedings, nor an opportunity to be heard at the hearing at which the order was made.
It was an issue on which the view of the Court of Appeal starkly diverged.
In Canada Goose, the Court of Appeal considered that a final injunction could not be granted in a protester case against persons unknown who were not parties to the proceedings at the date of the trial.
In Barking and Dagenham London Borough Council v Persons Unknown and others [2022] EWCA Civ 13; [2022] EGLR 9, the Court of Appeal disagreed, setting the scene for the most recent Supreme Court decision on this issue.
The Supreme Court dismissed the appeal. The court determined that newcomer injunctions were a “wholly different type of injunction” and, on that basis, there was no legal distinction between interim and final injunctions.
It confirmed that such newcomer injunctions remained available as a remedy in certain circumstances, both on an interim and final basis, subject to several safeguards:
- There must be a compelling need to protect civil rights or enforce public law that is not adequately met by any other remedies. Whether this represents any real change in practice remains to be seen; the courts have always been inherently cautious in issuing injunctions of this nature.
- Newcomers are to be protected by procedural mechanisms built into both the application and the court order – they are to be: (i) advertised widely; and (ii) displayed in a prominent location. These requirements seemingly render redundant the usual practice of obtaining an order for alternative service; in reality, however, it is likely this practice will persist given that there will usually be other categories of defendants to serve.
- Local authorities will be subject to an ongoing strict disclosure requirement to disclose to the court any matter which (after “due research”) the applicant considers that a newcomer might wish to raise by opposition. The potential scope and reach of this enhanced requirement are considerable. Further, it is unclear what acts the court will consider to be sufficient to satisfy the threshold of due research. Full discharge of this obligation is likely to prove exceedingly onerous.
- Newcomer injunctions should be limited so that they do not apply for a disproportionately long period of time, or to a disproportionately wide geographical area. The Supreme Court has imposed a one-year temporal limit for such injunctions before they are reviewed.
- Finally, the court must be satisfied that it is, on the particular facts of the case, just and convenient that a newcomer injunction is granted. This represents no real change to the status quo.
For cases in the Traveller and Gypsy sphere, the imposition of stringent procedural safeguards may well have the effect of quelling the “frenzy”.
Given the availability of other remedies at local authorities’ disposal (which are not available to private entities), we may see a gradual retreat to the position whereby injunctive relief is considered an exceptional remedy of last resort, rather than the default setting.
What of the protest and trespass arena? The judgment expressly states that the foregoing safeguards are not to be taken as prescriptive in relation to newcomer injunctions in other cases.
While it is probable that the lower courts will follow the guidance (where relevant) in practice, the judgment is unlikely to produce outcomes dissimilar to those where Canada Goose has been applied.
The biggest impact may be felt in the scope of the injunction itself, rather than the availability of the remedy to private applicants.
In that respect, the Supreme Court has plainly endorsed the propriety of such a remedy as an effective means of protecting landowner rights and fully rejected the notion that it was “unsuitable as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protestors”.
Accordingly, while the jurisprudential groundwork may have changed, it is not a wholesale shift in the protest landscape.
Temporal limits
The past 18 months have seen a rise in the number of long injunctions granted, most notably in the protest and direct action sphere, of up to five years in duration (see Transport for London v Persons Unknown and others [2023] EWHC 1038 (KB); [2023] PLSCS 76 and Transport for London v Lee [2023] EWHC 1201 (KB)).
Such injunctions are generally subject to in-built annual supervisory reviews which are imposed by courts to monitor the continuing threat of direct action.
Whether this practice will continue post-Wolverhampton in the protest sphere may now be in some doubt.
The Supreme Court considered that “injunctions of this kind… ought to come to an end (subject to any order of the judge), by effluxion of time in all cases after no more than a year unless an application is made for their renewal”.
However, the court also considered that, in the context of protest cases, “the duration and geographical scope of the injunction necessary to protect the applicant’s rights in any particular case are ultimately matters for the judge having regard to the general principles we have explained”.
If the reference to “injunctions of this kind” is interpreted by the lower courts to apply to all newcomer injunctions, then a five-year injunction may well become a thing of the past.
If that occurs, it will be interesting to see how the courts will treat the duration of any injunctions issued within the same application (ie those against named/identifiable defendants or persons unknown other than newcomers).
Instead of creating a two-tier system, the courts may well seek to dovetail these, with the result that temporal limits are permanently curtailed to one year for all such injunctions.
Further authority on these issues is required in short order.
Contempt
The teeth of an injunction against persons unknown lies in its deterrent effect; a party who breaches an injunction can be held in contempt of court, which in some circumstances can lead to imprisonment.
Issues on contempt applications abound, not least assisted by the significant changes to the old regime by virtue of CPR Part 81 that has been in force since 1 October 2020.
Certain key issues regarding the court’s jurisdiction under this new rule were helpfully clarified by the Court of Appeal in Business Mortgage Finance 4 plc and others v Hussain [2022] EWCA Civ 1264, which will vastly assist with the progression of such applications and avoiding the numerous associated procedural traps.
Lastly, MBR Acres Ltd v McGivern [2022] EWHC 2071 serves as a salutary reminder of the high burden of proof imposed on claimants to ensure that orders have been properly served on respondents. Claimants may be sanctioned for bringing committal proceedings against individuals who have inadvertently or trivially breached protest injunctions.
In this case, the claimant was required to obtain the permission of the court to bring further contempt applications against persons unknown.
This was after a committal application had been brought against an individual who was unaware of the protest injunction and whose breach was merely technical.
The new year will no doubt ring in further changes to this constantly evolving landscape.
Antony Phillips is head of real estate and head of property litigation at Fieldfisher
