Practice and procedure – Trespass – Injunction – Respondent local authorities applying for interim and final injunctions binding unidentified persons (newcomers) – High court concluding court had no power to grant newcomer injunctions – Court of Appeal reversing decision – Appellants appealing – Whether court wrongly concluding that final injunctions could, as matter of principle, be granted against newcomers – Appeal dismissed
Between 2015 and 2020, the respondent local authorities obtained injunctions designed to prevent Gypsies and Travellers from camping on local authority land without permission. The claimants relied upon a number of statutory provisions, including section 187B of the Town and Country Planning Act 1990, under which the court could grant an injunction to restrain an actual or apprehended breach of planning control, and in some cases also upon common law causes of action, including trespass to land.
The injunctions were addressed to “persons unknown” because the Gypsies and Travellers who might wish to camp on a particular site could not generally be identified in advance. When they were granted, the unknown persons (so-called newcomers) had not yet camped, or threatened to camp, on the local authority land without permission, or to commit any other relevant unlawful activity. The injunctions were obtained without notifying any other party.
From around mid-2020, the respondents applied to extend or vary injunctions which were coming to an end. After one hearing, the judge decided that it was necessary to review all newcomer injunctions affecting Gypsies and Travellers. Therefore, the appellants were granted permission to intervene to represent the interests of Gypsies and Travellers.
Following the review hearing, the judge concluded that the court did not have the power to grant newcomer injunctions, except on a short-term, interim basis and discharged the newcomer injunctions obtained by the respondents.
The Court of Appeal allowed the respondents’ appeal: [2022] EWCA Civ 13. The appellants appealed to the Supreme Court.
Held: The appeal was dismissed.
(1) The court had jurisdiction (in the sense of power) to grant an injunction against “newcomers”, ie, persons who at the time of the grant of the injunction were neither defendants nor identifiable, and who were described in the order only as persons unknown. The injunction might be granted on an interim or final basis, necessarily on an application without notice: South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429; [2006] 1 WLR 658, Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320, Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6; [2019] 2 WLR 1471 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] PLSCS 37; [2020] 1 WLR 2802 considered.
A newcomer injunction would be effective to bind anyone who had notice of it while it remained in force, even though that person had no intention, and had made no threat, to do the act prohibited at the time when the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action. It was inherently an order with effect contra mundum and was not to be justified on the basis that those who disobeyed it automatically became defendants.
(2) In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court would be guided by principles of justice and equity and, in particular, that: (i) equity provided a remedy where the others available under the law were inadequate to vindicate or protect the rights in issue; (ii) equity looked to the substance rather than to the form; (iii) equity took an essentially flexible approach to the formulation of a remedy; and (iv) equity was not constrained by hard rules or procedure in fashioning a remedy to suit new circumstances.
In deciding whether to grant a newcomer injunction, the application of those principles in the context of trespass and breach of planning control by Travellers would be likely to require an applicant: to demonstrate a compelling need for the protection of civil rights or the enforcement of public law not adequately met by any other remedies (including statutory remedies) available to the applicant; and to build into the application and into the order sought procedural protection for the rights (including Convention rights protected under the Human Rights Act 1998) of the newcomers affected by the order, sufficient to overcome the potential for injustice arising from the fact that, as against newcomers, the application would necessarily be made without notice to them.
(3) Those protections were likely to include: advertisement of an intended application so as to alert potentially affected Travellers and bodies which might be able to represent their interests at the hearing of the application; full provision for liberty to persons affected to apply to vary or discharge the order without having to show a change of circumstances; together with temporal and geographical limits on the scope of the order so as to ensure that it was proportional to the rights and interests sought to be protected.
Since the interests of Gypsies and Travellers were not typically represented at the hearings where newcomer injunctions were granted, the applicant local authorities would be obliged to comply in full with the disclosure duty which attached to the making of a without notice application, including bringing to the attention of the court any matter which (after due research) the applicant considered that a newcomer might wish to raise by way of opposition to the making of the order.
(4) A newcomer injunction was only likely to be justified as a novel exercise of an equitable discretionary power if it was, on the particular facts, just and convenient that such an injunction be granted. It might well not, for example, be just to grant an injunction restraining Travellers from using some sites as short-term transit camps if the applicant local authority had failed to exercise its power or, as the case might be, discharge its duty to provide authorised sites for that purpose within its boundaries.
If those considerations were adhered to, there was no reason in principle why newcomer injunctions should not be granted and the court was satisfied they had been and remained a valuable and proportionate remedy in appropriate cases.
Richard Drabble KC, Marc Willers KC, Tessa Buchanan and Owen Greenhall (instructed by Community Law Partnership, of Birmingham) appeared for the appellants; Mark Anderson KC and Michelle Caney (instructed by Wolverhampton City Council Legal Services) appeared for the first respondent; Nigel Giffin KC and Simon Birks (instructed by Walsall Metropolitan Borough Council Legal Services) appeared for the second respondent; Caroline Bolton and Natalie Pratt (instructed by Sharpe Pritchard LLP and London Borough of Barking and Dagenham Legal Services) appeared for the third to tenth respondents; Stephanie Harrison KC, Stephen Clark and Fatima Jichi (instructed by Hodge Jones & Allen LLP) appeared for the first intervener; Jude Bunting KC and Marlena Valles (instructed by Liberty) appeared for the second intervener; Richard Kimblin KC and Michael Fry (instructed by HS2 Ltd Legal Department and the Government Legal Department) appeared for third and fourth interveners.
Eileen O’Grady, barrister
Click here to read a transcript of Wolverhampton City Council and others v London Gypsies and Travellers and others
