Local authority land, injunctions and newcomers

Mari Roberts and Christopher Watkins look at the lessons to be learned from the Supreme Court's landmark ruling on whether courts can grant injunctions against "newcomers".

The Supreme Court has unanimously ruled in Wolverhampton City Council and Others v London Gypsies and Travellers and Others [2023] UKSC 47 that courts have the power to grant injunctions against “newcomers”, that is, persons who at the time of the grant of the injunction are unknown and are unidentifiable, and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits. The injunction may be granted on an interim or final basis, necessarily on an application without notice. Such an injunction will be effective to bind anyone who has notice of it while it remains in force, and it is inherently an order with effect contra mundum. This case therefore potentially has significant implications in several contexts where injunctions may be used including industrial picketing, environmental and other protests, breaches of intellectual property rights, and breaches of planning control.

Background

Since 2015 a number of local authorities have sought interim and then final injunctions against “persons unknown” who may in the future set up unauthorised encampments on local authority land (so-called “newcomers”). The persons affected by such injunctions fall mainly into three categories, who would describe themselves as Romani Gypsies, Irish Travellers and New Travellers.

In the context of Gypsies and Travellers, newcomer injunctions are generally made in cases where the affected persons are unlikely to have any right to set up unauthorised encampments on the land. The usual processes of eviction, or even injunction, against named Gypsies and Travellers are generally inadequate because, by the time the local authority has commenced proceedings, the original group will often have vacated the land and will have been replaced by others, against whom the proceedings are of no effect. Local authorities therefore seek newcomer injunctions because they provide an effective means of enforcing their legal rights.

The local authorities relied upon a number of statutory provisions, including s187B Town and County Planning Act 1990 which enables the court to grant an injunction to prevent actual or anticipated breach of planning control and s222 Local Government Act 1972, which confers on local authorities the power to bring proceedings to enforce obedience to public law. The injunctions were obtained without notice and copies of the orders were placed in prominent locations on the relevant sites.

In an appeal to the Supreme Court the appellants challenged an injunction obtained in October 2018 by Wolverhampton County Council against “persons unknown”. They did so as a test case as the same issue has arisen in relation to several other local authorities who have obtained similar orders against “newcomers”. There were a number of interveners in the Supreme Court including Friends of the Earth and Liberty. The case was heard on 8 and 9 February 2023 with Judgment being handed down on 29 November 2023.

In the Lower Courts

From around mid-2020, applications were made by local authorities to extend or vary injunction which were coming to the end their fixed duration. Nicklin J decided that there was a need to review all such injunctions and “called in” all the relevant cases to be case managed together. In London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors, Nicklin J concluded that in light of the decision of the Court of Appeal in Canada Goose UK Retail Ltd v Persons Unknown, interim injunctions could be granted against persons unknown, but that final injunctions could be granted only against parties who had been identified and had had an opportunity to contest the final order sought.

If the relevant local authority could identify anyone in the category of “persons unknown” at the time the final order was granted, then the final injunction bound each person who could be identified. If not, then the final injunction granted against “persons unknown” bound no-one. In the light of that conclusion, Nicklin J discharged the final injunctions either in full or in so far as they were addressed to any person falling within the definition of “persons unknown” who was not a party to the proceedings at the date when the final order was granted.

Twelve of the local authority claimants appealed to the Court of Appeal. In its decision, set out in a judgment given by Sir Geoffrey Vos MR (with which Lewison and Elisabeth Laing LJJ agreed), the court held that “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”. London Gypsies and Travellers and others appealed that decision.

Issues for the Supreme Court to Consider

Two main issues were considered in the appeal to the Supreme Court, they can be summarised as follows.

Issue 1

Is it open to a court in principle to exercise its statutory power under section 37 of the Senior Courts Act 1981 so as to grant an injunction which will bind “newcomers”, that is to say, persons who were not parties to the claim when the injunction was granted other than on an interim basis or for the protection of Convention right?

Issue 2

If it is it is wrong in principle and/or not open to a court to grant such an injunction, then –

• Does it follow that such an injunction (other than for the protection of Convention rights) may not properly be granted on an interim basis, except where that is required for the purpose of restraining wrongful actions by persons who are identifiable (even if not yet identified) and who have already committed or threatened to commit a relevant wrongful act?
• Was Nicklin J right to hold that the protection of Convention rights could never justify the grant of a traveller injunction, which the Judge defined as an injunction prohibiting the unauthorised occupation or use of land?

Judgment

Lord Reed, Lord Briggs and Lord Kitchen gave judgment with whom Lord Hodge and Lord Lloyd-Jones agreed. The appeal was dismissed. The reasons differed from the Court below, but the orders made by the Court of Appeal were considered to be correct.

The court reviewed the case law in respect of newcomer injunctions commencing in 2003 and concluded that the injunction against newcomers is a wholly new type of injunction. They found the focus upon the duality of interim and final injunctions ultimately unhelpful and stated in paragraph 139 “In our view the injunction, in its operation upon newcomers, is typically neither interim nor final, at least in substance. Rather it is, against newcomers, what is now called a without notice (ie in the old jargon ex parte) injunction, that is an injunction which, at the time when it is ordered, operates against a person who has not been served in due time with the application so as to be able to oppose it, who may have had no notice (even informal) of the intended application to court for the grant of it, and who may not at that stage even be a defendant served with the proceedings in which the injunction is sought. This is so regardless of whether the injunction is in form interim or final”.

With regards to the first issue, their Lordships did not accept that the granting of injunctions against “newcomers” was constitutionally improper. In so far as the local authorities are seeking to prevent the commission of civil wrongs such as trespass, they considered that local authorities are entitled to apply to the civil courts for any relief allowed by law and they were satisfied that there is jurisdiction (in the sense of power) for the court to grant newcomer injunctions either on an interim or final basis, necessarily on an application without notice. The objection on the basis of lack of procedural fairness concentrating on the ‘without notice’ element of these injunctions was also rejected. The absence of notice is simply inherent in an application for this type of injunction because, “newcomers”, are by their nature unidentifiable as the applicant has no idea who they might turn out to be.

Having decided that the first issue in favour of the Respondent local authorities, their Lordships went on to say that it does not mean that it will be appropriate for the court to grant a newcomer injunction in every case. In deciding whether it should grant a newcomer injunction, the court should have regard to the established equitable principles, which derive from the important role of equity putting right defects or inadequacies in the common law. The court should only exercise this power in circumstances where there is a compelling need to protect civil rights or to enforce public law that is not adequately met by any other available remedies. In addition, newcomer injunctions should only be made subject to procedural safeguards designed to protect newcomers’ rights.

Their Lordships outlined measures to ensure that the rights (including Convention rights) of newcomers are protected, which would be sufficient to overcome the strong prima facie objection of subjecting a party to a without notice injunction otherwise than as an emergency measure to hold the ring. In deciding whether to grant a newcomer injunction, the applicant will be required to satisfy the court on the following points:

1. That there is a compelling need for the protection of civil rights, or the enforcement of public law is not adequately met by any other remedies (including statutory remedies) available to the applicant.
2. Procedural protection must be built into both the application and the order in order to safeguard the rights (including Convention rights) of the newcomers affected by the order sufficient to overcome the potential for injustice arising from the fact that, as against newcomers, the application will necessarily be made without notice to them.
   Those protections are likely to include the following:
   • An intended application should be widely advertised to alert potentially affected travellers or bodies which may be able to represent their interests so that they given a fair opportunity of making representations before any order is made;
   • Once the order has been made, it must be displayed in a prominent location at the site affected by it;
   • Newcomers affected must be clearly notified of their right to apply to the court to vary or discharge the order without having to show a change of circumstances; and
   • Temporal and geographical limits on the scope of the order to ensure that it is proportional to the rights and interests sought to be protected.
3. The applicant must be able to show that it has complied with the strict duty requiring it to disclose to the court (after due research) any matter that a newcomer might raise to oppose the making of the order.
4. The court must be satisfied that, on the particular facts of the case, it is just and convenient that a newcome injunction should be granted.

If those considerations and safeguards are met, their Lordships considered that there is no reason in principle why newcomer injunctions should not be granted.

In section 5 of the judgment (paragraph 187 onwards), the court considered the practical application of the principles affecting an application for a newcomer injunction against Gypsies and Travellers and the safeguards that should accompany the making of such an order and provided some guidance on those matters in so far as it felt able to do so:

(1) Compelling justification for the remedy (at paragraphs 188 to 217) – this includes consideration of the obligation or duty to provide sites for Gypsies and Travellers, planning policy, other statutory powers available and byelaws. These are all matters that must be explored upon review of the orders;

(2) Evidence of threat of abusive trespass or planning breach – the applicant must satisfy the court by full and detailed evidence that there is a compelling justification for the order sought and full disclosure must be made of all facts, matters and arguments of which, after reasonable research, it is aware or could with reasonable diligence ascertain and which might affect the decision of the court whether to grant, maintain or discharge the order in issue, or the terms of the order it is prepared to make or maintain. This is a continuing duty on any local authority and applies after an order has been made. “The evidence in support of the application must therefore err on the side of caution; and the court, not the local authority, should be the judge of relevance” (paragraph 220);

(3) Identification or other definition of the intended respondents to the application – the actual or intended respondents to the application must be defined as precisely as possible. In so far as it is possible actually to identify persons to whom the order is directed (and who will be enjoined by its terms) by name or in some other way, the local authority ought to do so;

(4) The prohibited acts – the injunction must spell out clearly and in everyday terms (avoiding descriptions by way of legal causes of action such as trespass or nuisance, unless that is unavoidable) the full extent of the acts it prohibits, and this is particularly so where it is sought against persons unknown, including newcomers. The terms of the injunction – and therefore the prohibited acts – must correspond as closely as possible to the actual or threatened unlawful conduct;

(5) Geographical and temporal limits – paragraph 225 of the judgment states “We have considerable doubt as to whether it could ever be justifiable to grant a Gypsy or Traveller injunction which is directed to persons unknown, including newcomers, and extends over the whole of a borough or for significantly more than a year”. Borough-wide inunctions ought to be reviewed periodically and ought to come to an end by effluxion of time unless an application is made for their renewal which must be accompanied by full and complete disclosure to the court supported by evidence;

(6) Advertising the application in advance – any local authority intending to make an application of this kind must take reasonable steps to draw the application to the attention of persons likely to be affected by the injunction sought or with some other genuine and proper interest in the application in sufficient time before the application is to be heard. The methods used to give notice of the injunction order, appropriately modified, could be used to give notice of the application itself;

(7) Effective notice of the order – any applicant for such an order must make full and complete disclosure of all the steps it proposes to take to (i) to notify all persons likely to be affected by its terms; and (ii) to ascertain the names and addresses of all such persons who are known only by way of description;

(8) Liberty to apply – an order of this kind ought always to include generous liberty to any person affected by its terms to apply to vary or discharge the whole or any part of the order;

(9) Cost protection – the court saw benefit of a protective or costs capping order being made in appropriate cases because of a concern that costs of litigation of this kind are way beyond the means of most if not all Gypsies and Travellers and many interveners;

(10) Cross-undertaking – there may be cases where this is appropriate;

(11) Protest cases – the emphasis in the case was on newcomer injunctions in Gypsy and Traveller cases. Nothing the court has said is to be taken as prescriptive in relation to newcomer injunctions in other cases but any protestor who has notice of an order will be bound by it just as would be the case for newcomer Gypsies Travellers.

Conclusion

This judgment will be welcomed by local authorities as it confirms the position in respect of newcomer injunctions. The court has provided guidance as to how those applications should be approached and the evidence that will need to be produced by the local authority. Any cases where similar orders have been made which have been stayed pending this decision will need to be reviewed urgently.

Although the decision was primarily concerned with injunctions under Section 187b Town and Country Planning Act to remedy breaches of planning control and under s222 Local Government Act 1972, it also is also of wider importance on the question of newcomer injunctions generally.

Sharpe Pritchard acted for a number of the local authorities in the Supreme Court and in the courts below and are specialists in obtaining injunctions to prevent breaches of planning control and to prevent unauthorised encampments. Please contact Mari Roberts if you have any queries or require assistance with any ongoing or future cases.

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