A newcomer to the world of injunctions

19 December 2023 by Guest Contributor

Factual background

The appeal in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 concerned injunctions obtained by over 38 different local authorities between 2015 and 2020 to prevent unauthorised encampments by Gypsies and Travellers. These “newcomer injunctions” as they are known, are a wholly new form of injunction, granted without prior notice, against persons unidentified at time of the grant of the injunction and who have not yet performed, or even threatened to perform the acts which the injunction prohibits. They therefore apply “to potentially anyone in the world” [143(i)].

Local authorities sought to use such injunctions, due to the inefficacy of obtaining an injunction against named Gypsies or Travellers who, by the time proceedings have commenced, have left, and been replaced by another group, against whom the injunction has no effect.

Procedural background

These proceedings began in the High Court in Barking and Dagenham LBC v Persons Unknown [2022] J.P.L. 43, in which Nicklin J determined that only interim injunctions, and not final injunctions, could be granted against persons unknown. This was overturned on appeal in Barking and Dagenham LBC v Persons Unknown [2022] EWCA Civ 13, a judgment handed down by Sir Geoffrey Vos MR, with which Lewison and Elisabeth Laing LJJ agreed. The Court of Appeal found that a court can grant a final injunction against persons who are unknown and unidentified at the date of an order from occupying and trespassing land. Vos MR stated that the High Court had failed to have proper regard for South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429, in which it was decided that newcomer injunctions could be granted because when an unknown and unidentified person knowingly violated an injunction, they made themselves a party to the action [91].

The Appellants appealed to the Supreme Court. The question was whether (and if so on what basis and subject to what safeguards) the court has the power to grant an injunction which [2]:

1. binds persons who are not identifiable at the time when the order is granted and;
2. who have not at that time infringed or threatened to infringe any right or duty which the claimant seeks to enforce but may do at a later date.

The judgment

The Supreme Court (comprising Lord Reed, Lord Briggs, Lord Kitchin, Lord Hodge and Lord Lloyd-Jones) unanimously dismissed this appeal. They held that a court did have the power to grant newcomer injunctions, “regardless of whether in form interim or final, either in terms of jurisdiction or principle” [167]. The questions addressed within this judgment can be neatly summarised as, when how and why can these injunctions be used.

When?

The Supreme Court were careful to note that such injunctions were “only likely to be justified as a novel exercise of an equitable discretionary power” if, the following factors applied [167]:

1. There is a compelling need, sufficiently demonstrated by the evidence for the protection of civil rights, the enforcement of planning control, the prevention of anti-social behaviour or such other statutory objective as may be relied upon.
2. There is procedural protection for the rights (including Convention rights) of the affected newcomers, sufficient to overcome the strong prima facie objection of subjecting them to a without notice injunction, otherwise than as an emergency measure to hold the ring. This will need to include:
3. an obligation to take all reasonable steps to draw the application and order to the attention of those likely affected by it and;
4. the most generous provision for liberty (ie permission) to apply to have the injunction varied or set aside and;
5. on terms that the grant of the injunction in the meantime does not foreclose any objection of law, practice, justice, or convenience which the newcomer so applying might wish to raise.
6. Applicant local authorities can be seen and trusted to comply with the most stringent disclosure duty ie. To research and present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief.
7. The injunctions are constrained by territorial and temporal limitations. The Supreme Court expressed “considerable doubt” as to whether newcomer injunctions could extend over a whole borough and ought to come to an end “after no more than a year” unless an application is made for their renewal [225].
8. It is on the particular facts, just and convenient that such an injunction be granted. For example, it might not be just for an injunction to be granted which restrained Travellers from using some sites as short-term transit camps if the applicant’s local authority has failed to discharge its duty to provide authorised sites for that purpose within its boundaries.

How?

A key question arising from such injunctions is at what point, if indeed ever, does the unidentified person against whom the injunction is brought become a party to the proceedings? If the general rule in Iveson v Harris (1809) 34 E.R. 982 were to apply, how can a claim form be served on an unidentified individual? In Gammell, it was decided that an individual became a defendant at the moment they breached the terms of the injunction [63-66]. However, the Supreme Court rejected the so-called “Gammell solution” on account that “newcomer injunctions were wholly different and need not be considered as a conventional injunction inter partes, subject to the usual requirements as to service” [132]. Instead, the Supreme Court suggested that newcomer injunctions should be considered as those which operate contra mundum – against the world. Whilst the persons against whom they are directed ought to be described as precisely as possible, they potentially embrace the whole of humanity. Therefore, anyone who knowingly breaches the injunction is liable to be held in contempt, regardless of whether they have been served with the proceedings.

The second question the court confronted was how a newcomer injunction can restrain the conduct of persons against whom there is no existing cause of action [43]. The rigidity of the principle that an injunction must be founded on an existing cause of action (Siskina v Distos Cia Naviera SA [1979] AC 210) was rejected by the Privy Council in Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24. The Supreme Court maintained that it is now well-established that the grant of injunctive relief is not always conditional on the existence of a cause of action [43].

Why?

The Supreme Court made clear that the court’s power to grant a newcomer injunction is derived from its equitable jurisdiction and enshrined in section 37(1) of the Senior Courts Act 1981. Save for the relevant statutory restrictions, the power is effectively unlimited as demonstrated by the plethora of new kinds of injunction developed over the last 50 years from freezing injunctions, search orders, third-party disclosure orders (“Norwich Pharmacal orders”), internet blocking orders, and anti-suit injunctions [19]-[22], [147]-[148].

Whilst the newcomer injunction may be novel, the court is clear that the long-standing principle of equity to “intervene where it perceives that common law remedies are inadequate to protect or enforce rights” remains a central consideration [150]. The Supreme Court emphasised the relevance of these principles at [150-153] as I have outlined below:

1. Where there is a right, there ought to be a remedy to fit that right. This was apparent in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11 (“Meier”).  An injunction was granted to prevent Travellers from setting up encampments on nearby land because a possession order was ineffective on account that the Travellers had not yet occupied that piece of land. As Lady Hale made clear at [25] “the fact that this has never been done before is no deterrent to the principled development of the remedy to fit the right, provided that there is proper procedural protection for those against whom the remedy may be granted” [150].
2. Equity looks to the substance rather than the form. Applied in this case, firstly the court recognised that all newcomer injunctions, whether interim or final, were in substance without notice injunctions. Secondly, such flexibility enabled the court to ensure the newcomer was granted a proper opportunity to be heard, rather than being restricted to a particular procedural means of doing so [151].
3. Equity is essentially flexible. The court referred to “internet blocking orders” as demonstrative of the “imaginative way in which equity has provided an effective remedy for the protection and enforcement of civil rights, where conventional means of proceeding against the wrongdoers are impracticable or ineffective” [164]. Given the flexibility afforded by equity, the court referred to internet blocking orders as “a jumping-off point for the development of newcomer injunctions”.
4. Other than justice and convenience, equity is not restrained by a limiting rule.

Whilst the Supreme Court accepted that “not all relevant equitable principles favour the granting of injunctions”, they considered the focus on substance rather than form of most importance [154]. Therefore, the Supreme Court concluded that there is no “immovable obstacle in the way of granting newcomer injunctions” [167]. They are open for a court to make and rest on core tenets of Equity. However, these same principles also necessitate safeguards to ensure that the rights of the newcomers themselves are adequately protected.

Comment

The intervening status of “Friends of the Earth”, “Liberty”, “HS2 limited” and “Secretary of State for Transport”, is evidence in itself of the wide significance of the issues, particularly in relation to protest rights. However, the Supreme Court was at pains to emphasise that “nothing we have said should be taken as prescriptive in relation to newcomer injunctions in other cases, such as those directed at protestors” [235]. Therefore, whilst it is premature to judge if and how, newcomer injunctions may be used to prevent the blocking of a motorway by protestors, the judgment raises some important questions in this context.

1. Firstly, in their discussion of the temporal limits, the Supreme Court considered that a newcomer injunction ought to come to an end after no more than a year [225]. This contrasts with the five-year final injunction imposed against “Insulate Britain” protestors in. This raises a question as to how temporal limitations may come into play if newcomer injunctions are used in future cases against protestors.
2. Secondly, the Supreme Court’s requirement for the relevant authority to disclose all facts, matters and arguments which may affect the decision of the court either to grant, maintain or discharge the order [219] is an onerous and continuing obligation. This has not always been maintained when granting injunctive relief in the context of protest. Given the Supreme Court authority on the issue this suggests that should newcomer injunctions be used in the context of protest, an expectation of full and frank disclosure would apply.
3. Thirdly, the importance of this nomadic lifestyle to the Gypsy and Traveller identity has been recognised by the European Court of Human Rights in a series of decisions including Chapman v United Kingdom (2001) 33 EHRR 18 [74]. Therefore, an individual Traveller subjected to a newcomer injunction can rely upon Article 8. However, as with the case of every protest – a careful balancing act must take place in which the right of the individual is considered alongside the public interest.

So, whilst this injunction is certainly “the newcomer” to the ever-expanding list of types, further analysis of the judgment suggests that perhaps the underlying principles are less novel than at first glance.

Rebekah Lee is a pupil barrister at 1 Crown Office Row