High Court judge warns councils over procedural failings in obtaining injunctions on occupation of land by 'persons unknown'

A High Court judge has questioned “disturbing discoveries” about how councils have used injunctions issued to prevent occupation of land by ‘persons unknown’.

In Canterbury City Council v Persons Unknown [2020] EWHC 3153 (QB)  Mr Justice Nicklin said councils must take immediate remedial steps if they have obtained an injunction but not validly served the claim form.

Canterbury’s case was one of 38 in which injunctions had been granted to local authorities to protect open spaces from trespassers intent on taking up residence. "Most of these injunctions were targeted at Gypsies and Travellers, but were not limited to them, and many orders also sought to prevent using the land for the disposal of waste and so-called fly-tipping,” the judge noted.

He said some injunctions had been for up to three years and were now coming back before the courts for extensions.

In Canterbury’s case the Part 8 Claim Form was issued on 10 April 2019 against ‘persons unknown”.

The council had been concerned by “a significant risk of trespass, an anticipated breach of planning control (by means of unauthorised residential use) and the stopping/obstruction of the highway which will be prejudicial to the interests of the area”.

The judge said Canterbury’s application had amounted to saying: “We have historically had a problem with Travellers illegally occupying land. Other local authorities have been granted wide injunctions against persons unknown and we would like one, too.”

Like Enfield Council in London Borough of Enfield v Persons Unknown & Ors [2020] EWHC 2717 (QB), he said Canterbury had failed to validly serve the claim form and so “Canterbury City Council has been enforcing interim and final injunctions since 10 April 2019 where it, too, has failed to establish jurisdiction over any defendant”.

Nicklin J said: “These are disturbing discoveries. In what Coulson LJ described as a ‘feeding frenzy' to obtain these injunctions there appear to have been serious failures on the part of two local authorities, and their representatives, to observe basic procedural rules and safeguards.

“The full extent of these failures, and whether they have occurred in other cases, is likely to emerge in the future case management of the cohort that is now being undertaken.

“But I should make this clear now. If a local authority discovers that it, too, has obtained an injunction in a case where the Claim Form has not been validly served within the period permitted by CPR 7.5, then it is incumbent on that local authority to take steps immediately to remedy that situation, if it can".

Where it could not do this the council concerned could not continue to rely upon the injunction, the judge said.

Mark Smulian