Interim and final injunctions: the differences

Roderick Morton considers two injunction cases which neatly illustrate the differences between interim and final injunctions.

Neither is a planning case specifically but the practical difficulties with injunctions which are apparent in these cases are the same as those arising with injunctions sought under s187B Town and Country Planning Act 1990.

TCPA 1990 injunctions

As a reminder, an injunction can be issued under s187B to restrain an actual or apprehended breach of planning control. A court hearing will be required and the judge will need to reach a conclusion on the merits of an injunction; these can include being satisfied that there is a breach, that it is unlikely to get planning permission, that the proposed defendants are responsible and that it is appropriate for the court to restrain the defendants, potentially affecting their rights. We tend to call such an injunction a “final injunction” because it has no end date. 

It can take quite some time for the proceedings to be issued and served and for the claim to get to a court hearing. In the meantime, the council can seek an interim injunction, usually preserving the status quo and preventing further unlawful development. The interim injunction can be sought on an emergency basis without notice to potential defendants. The merits of the claim are not considered at interim injunction stage. Instead, the court’s main task is to consider the “balance of convenience” between preventing further development and infringing on people’s rights. The interim injunction can be granted where the balance of convenience favours preventing further development until the merits of the claim can be fully considered at the final injunction hearing. An interim injunction can be against “persons unknown” when the likely defendants cannot be identified.

The High Court gave a very comprehensive review of TCPA injunctions when it considered borough-wide G&T injunctions earlier this year (Barking & Dagenham LBC and others vs Persons unknown and others [2021] EWHC 1201). The court came out fairly strongly against both injunctions covering a wide area and injunctions against persons unknown. The ramifications were not limited to G&T injunctions. 

It is one thing to obtain an injunction; it is quite another to enforce it. To enforce an injunction, an authority must apply to court for committal of a defendant to prison. The authority will need to demonstrate that the individual was personally served with a copy of the injunction; knowingly breached it and that the “custody threshold” is met (ie that the breach is sufficiently serious). It is, sadly, rare for a court to commit a defendant to prison in planning cases.

Hackney case

In The London Borough of Hackney v Grant & Ors [2021] EWHC 2548 Hackney sought an injunction against a number of Covid-19 protesters who had set up a camp on Hackney Downs in August 2021 protesting about the government’s approach dealing with the virus. They were evicted from Hackney Downs by use of a possession order but indicated an intention to move to another green space in Hackney. Hackney obtained an interim injunction preventing this. The interim injunction applied borough-wide across all of Hackney, applied to persons unknown as well as various named defendants, and the court ordered that service could be made by posting on site.   

Hackney then sought to make the injunction final. This was rejected. When the merits of the case were considered, the judge was not convinced that Hackney had sufficient evidence that the defendants had an intention to camp elsewhere in Hackney. He found that, while public order breaches had taken place, there was little evidence that individual defendants had committed those breaches. He also pointed out that there was little evidence that the claim form had come to the attention of most of the defendants. The list of “persons unknown” had to be limited by reference to photos of specific protestors rather than applying to all members of the public. Hackney asked for alternative electronic service on the defendants for whom they had no address; the judge rejected this saying it would have amounted to “an order permitting service by unspecified electronic means on unspecified defendants, made without any evidence to support it.” And had he been minded to grant the order, the judge indicated that he would not have been willing to grant one on a borough-wide basis.

In all, then, while it was fairly straightforward to obtain an interim injunction on the “balance of convenience” test, the final injunction had much stricter requirements surrounding compliance with court rules, evidence and the exercise of the court’s discretion. The judge noted that Hackney had not fully taken account of the guidance in the Barking and Dagenham case.

Insulate Britain

The second case is the orders obtained by Highways England against the Insulate Britain protestors who have recently caused havoc on the M25 and other roads across southern England. No transcript seems to be available but the order has been published, from which we can see the following.

It is an interim order obtained without notice. It is therefore time limited and the authority has been directed to serve it and come back to court for an extension. The defendants are only “persons unknown”; there are no named defendants. While the authority has been directed to send it to Insulate Britain, the order expressly notes that this will not constitute service. The scope of the injunction is limited to particular roads, rather than applying nationwide. The right to protest is explicitly protected.

This, then, is a classic interim injunction. It may meet the balance of convenience test but it is rather less clear that it will survive at final injunction stage without a lot more work by the authority in identifying and serving individual defendants, proving service, proving breach by individuals and demonstrating the merits of an injunction which will inevitably involve restriction of the right to protest. The judge who granted Highways England the interim injunction is the same one who refused Hackney its final one. Contrary to what you might read in the Daily Mail, no-one is going to prison on this injunction.

Conclusion

The effect of the court’s restrictive approach to injunctions following Barking and Dagenham is masked by the looser “balance of convenience” test at interim injunction stage. Hackney is an example of what happens at final injunction stage when the merits of the claim are fully tested. Those seeking planning injunctions would do well to make sure they’ve read the Barking and Dagenham judgment in full, all 130 pages of it!

Roderick Morton is a partner at Ivy Legal.