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Local authority injunctions against “Persons Unknown” - the civil law runs out

Ranjit Bhose QC analyses the recent High Court ruling on "Traveller Injunctions" and "persons unknown".

In a 129-page judgment the High Court has held in London Borough of Barking and Dagenham and Others v Persons Unknown, London Gypsies and Travellers intervening [2021] EWHC 1201 (QB) that the Court cannot grant a claimant local authority final injunctive relief against two forms of “Persons Unknown”: either against persons who are not, by the date of the hearing of the final injunction, regarded as parties to the proceedings (“newcomers”), or alternatively, contra mundum (against all persons generally).

The factual context concerned injunctions, both interim and final, granted in 38 different sets of proceedings to local authorities and which prohibited unauthorised occupation or use of land which had been granted, generally, against “Persons Unknown”. The injunctions principally impacted upon the Gypsy and Traveller community.

Mr Justice Nicklin held that the injunctions sought or granted in the individual cases were subject to the principle endorsed by the Court of Appeal last year in Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2802: a final injunction operates only between the parties to the proceedings, and does not fall into the exceptional category of civil injunction that can be granted contra mundum [124]. Accordingly, a final injunction brought against “Persons Unknown” cannot bind persons who, following the granting of an interim order, subsequently occupy or use the relevant land, or persons who remain unidentified at the time of granting the final injunction; the final order can only bind those who have been made parties to the litigation by that time.

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Three issues of principle were identified [112]:

(1)   Did the Court have the jurisdiction, or was it correct in principle, generally or in any relevant category of claim, to grant a claimant local authority final injunctive relief:

a)      against “Persons Unknown” who were not, by the date of the hearing of the application for a final injunction, persons whom the law regards as parties to the proceedings e.g. newcomers? or

b)      on a contra mundum basis?

(2)   If the Court did not have such a jurisdiction to grant a final injunction:

a)      was it possible to identify defendants in the category of persons unknown who were parties to the proceedings at the date the final order was granted and were bound by it?

b)      should any final injunction, insofar as it bound newcomers, be discharged?

(3)   If there was no such jurisdiction to grant final injunctive relief, in what circumstances (if ever) should the Court grant interim injunctive relief against “Persons Unknown” defendants in such a claim, given that (logically) no final relief could later be granted?

On the first issue, the Claimants sought to distinguish Canada Goose, which concerned the rights of protesters under Articles 10 and 11 ECHR and the commercial interests of a private claimant, from the injunctions in the present case, which were brought by public authorities, relying on statutory powers and/or for the public good [154].

However, Mr Justice Nicklin held that it was fundamental to the English process of civil litigation that the Court cannot grant a final order against someone who is not a party to the claim and that accordingly, Canada Goose was of universal application to civil litigation in this jurisdiction [174 – 175].

He held that local authorities do not, by virtue of their statutory position and reliance on powers conferred by section 222 of the Local Government Act 1972, section 187B of the Town and Country Planning Act 1990, section 130 Highways Act 1980 or section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, have any exceptional ability to obtain final injunctions in civil proceedings against “Persons Unknown” which apply to and bind newcomers [176].

Similarly, Mr Justice Nicklin held that final injunctive relief could not be granted contra mundum in cases such as these, under section 37 of the Senior Courts Act 1981. In his judgment the Court would only exercise this narrow jurisdiction in very limited circumstances, being where there was no other way of protecting an engaged Convention right [224]. The local authorities could not demonstrate that the injunctions sought fell into this exceptional category, given their alternative powers to prevent the harm caused by unauthorised encampments [237].

As a result, on the second issue, the Court ordered that the final injunctions granted against “Persons Unknown” be discharged against newcomers at [241] and considered that the third issue was concluded by the Court’s endorsement of the Canada Goose principle in this context at [243]. The effect was that in few cases would it be possible to obtain even interim relief.

By way of practical guidance, Mr Justice Nicklin set out a series of procedural safeguards in claims against “Persons Unknown” at [248], requiring the taking of active steps to identify the defendants.

Comment

This important judgment will cause widespread concern to many local authorities who have sought and obtained injunctive relief against “Persons Unknown”, for the protection of their local areas.

Its effect is not limited to injunctions which principally impact upon the Gypsy and Traveller community. It applies to any case where a local authority has sought injunctive relief, including borough-wide relief, against “Persons Unknown”, whether relying on common law torts or any of the stated powers. It applies to actions to restrain trespass to land, breaches of planning control and a range of public and private nuisances – including ‘car cruising’, raves, and other anti-social behaviour. It applies, in particular, to all applications for quia timet relief.

Indeed, its likely effect – given what was also said by the High Court about the proper approach to orders for alternative service under CPR 6.15 – is to strike a death knell to the use of such injunctions by local authorities, save in narrow and limited cases.

Ranjit Bhose QC is a barrister at Cornerstone Barristers. He acted for LB Hounslow (leading Sarah Salmon) and for LB Hillingdon and LB Richmond (leading Steven Woolf).  Ranjit also acted for Canada Goose in last year’s appeal.

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