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Councils win appeal over final injunctions against unauthorised encampment and prevention of newcomers occupying land

A High Court judge was wrong to hold that the court cannot grant final injunctions against unauthorised encampment that prevent newcomers from occupying and trespassing on land, the Court of Appeal has said.

The case of London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors [2022] EWCA Civ 13 arose in the context of a number of cases in which local authorities had sought interim and sometimes then final injunctions against unidentified and unknown persons who might in the future set up unauthorised encampments on local authority land.

Marc Willers QC, leading counsel for the first three interveners, explained that the persons concerned fell mainly into three categories, who would describe themselves as Romani Gypsies, Irish Travellers and New Travellers.

The Master of the Rolls, Sir Geoffrey Vos, said the central question in the appeal was whether Mr Justice Nicklin was right to hold that the court could not grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order (i.e. newcomers), from occupying and trespassing on local authority land.

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Mr Justice Nicklin held that this was the effect of a series of decisions, particularly the Court of Appeal’s decision in Canada Goose UK Retail Ltd. v. Persons Unknown and another [2020] EWCA Civ 202, [2020] 1 WLR 2802 (Canada Goose) and the Supreme Court’s decision in Cameron v. Liverpool Victoria Insurance Co Ltd (Motor Insurers’ Bureau Intervening) [2019] UKSC 6, [2019] 1 WLR 1471 (Cameron).

The judge said that, whilst 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.

The Master of the Rolls said that the 15 local authorities that were parties to the appeals before the court contended 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, and, in any event, should not be followed because (a) it was based on a misunderstanding of the essential decision in Cameron, and (b) was decided without proper regard to three earlier Court of Appeal decisions in South Cambridgeshire District Council v. Gammell [2006] 1 WLR 658, Ineos Upstream Ltd v. Persons Unknown and others [2019] EWCA Civ 515, [2019] 4 WLR 100, and Bromley London Borough Council v Persons Unknown [2020] EWCA Civ 12, [2020] PTSR 1043.

Sir Geoffrey said the case also raised a secondary question as to the propriety of the procedure adopted by the judge to bring the proceedings in their current form before the court.

“In effect, the judge made a series of orders of the court’s own motion requiring the parties to these proceedings to make submissions aimed at allowing the court to reach a decision as to whether the interim and final orders that had been granted in these cases could or should stand,” the Master of the Rolls said.

Counsel for one group of local authorities, Ms Caroline Bolton, submitted that it was not open to the court to call in final orders made in the past for reconsideration in the way that Mr Justice Nicklin did.

Sir Geoffrey said that, in addition, there were subsidiary questions as to whether (a) the statutory jurisdiction to make orders against persons unknown under section 187B of the Town and Country Planning Act 1990 (section 187B) to restrain an actual or apprehended breach of planning control validates the orders made, and (b) the court may in any circumstances like those in the present case make final orders against all the world.

The Master of the Rolls concluded that:

  1. the judge was wrong to hold that the court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order, from occupying and trespassing on land
  2. the procedure adopted by the judge was unorthodox. “It was unusual insofar as it sought to call in final orders of the court for revision in the light of subsequent legal developments, but has nonetheless enabled a comprehensive review of the law applicable in an important field. Since most of the orders provided for review and nobody objected to the process at the time, there is now no need for further action.”
  3. Section 37 of the Senior Courts Act 1981 (section 37) and section 187B impose the same procedural limitations on applications for injunctions of this kind.
  4. Whilst it is the court’s proper function to give procedural guidelines, the court "cannot and should not limit in advance the types of injunction that may in future cases be held appropriate to make under section 37 against the world".

Allowing the appeal, Sir Geoffrey added in his conclusion: “Whilst the procedure adopted by the judge was unorthodox and unusual in that he called in final orders for revision, no harm has been done in that the parties did not object at the time and it has 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."

Lord Justice Lewison and Lady Justice Laing agreed.

In his original ruling in London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors [2021] EWHC 1201 (QB) which was the subject of the appeal, Mr Justice Nicklin had suggested there were grounds to suspect that, in a significant number of applications by local authorities for interim injunctions against “Persons Unknown” targeting unauthorised encampments on land, there were material and serious breaches of the procedural requirements and the procedures of the Court – and the Interim Applications Court of the Queen’s Bench Division (Court 37) in particular – had been abused.

In a later ruling, issued in October 2021, Mr Justice Nicklin said four councils have been found to have engaged in an abuse of process relating to injunctions against travellers and he severely criticised a fifth in cases where they showed “complacency, even insouciance”.

See also: Court of Appeal cooks the (Canada) Goose - The Court of Appeal has allowed an appeal by 15 councils over whether final injunctions can be granted against ‘newcomers’. Ranjit Bhose QC and Wayne Beglan analyse the ruling.

Ranjit and Wayne are also holding a free webinar between 11 am and 12 pm on 20 January to discuss the implications of the Court of Appeal's decision. Click here for more information.

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