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.

In London Borough of Barking and Dagenham & Anor v Persons Unknown & Ors [2022] EWCA Civ 13 the Court of Appeal has overturned the May 2021 judgment of the High Court (Nicklin J) that the Court cannot grant a claimant local authority final injunctive relief against unidentified and unknown persons who may - in the future - set up unauthorised encampments on local authority land ('newcomers'). It rejected Nicklin J's conclusion that final injunctions can only bind such "Persons Unknown" who have, by the hearing of the final injunction, become parties to the proceedings (usually by virtue of orders for alternative service under CPR 6.15).

The factual context concerned injunctions, both interim and final, granted in 38 different sets of proceedings to local authorities. They prohibited the unauthorised occupation or use of land and had been granted, generally, against different descriptions of "Persons Unknown".

The injunctions principally impacted upon members of the Gypsy and Traveller community and sought to restrain common law trespass, public and private nuisance (including fly-tipping) and apprehended breaches of planning control under section 187B Town and Country Planning Act 1990 (i.e. residential development or occupation). All the final injunctions were intended by the local authorities to apply to newcomers since otherwise they had little utility and provided scant protection to local residents and the local environment from the various wrongs complained of.

However, Nicklin J held ([2021] EWHC 1201 (QB)) that the injunctions sought or granted in the individual cases were subject to a principle he drew from the Court of Appeal's decision in Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2802 at [89-92]: namely that 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 'against the world' [124]. Accordingly, Nicklin J held that a final injunction brought against "Persons Unknown" cannot bind newcomers. In his judgment, a final injunction only bound those who have been made parties to the litigation by that time, and should not be drafted in terms that would capture newcomers.

The Court of Appeal (Sir Geoffrey Vos, MR, Lewison and Elisabeth Laing LJJ) has now held, unanimously, that the Judge was wrong. The Master of the Rolls reviewed the caselaw, including Gammell (CA, 2005), Meier (SC, 2009), Cameron (SC, 2019), Ineos (2019, CA), Bromley (2020, CA), Cuadrilla (2020, CA) and Canada Goose (2020, CA). He held, in particular, that:

1. The Court had the power under section 37 Senior Courts Act 1981 to grant an injunction that binds non-parties to proceedings [71]. That is a broad provision; the courts should not cut down its breadth by imposing limitations which may tie a future court's hands in types of case that cannot now be predicted [72].
2. The judge was wrong to regard a final injunction as a remedy flowing from the final determination of rights between claimants and the trial defendants and wrong in saying that there was a "fundamental difference" between interim and final injunctions [69, 74, 77]. There is no real distinction, particularly in the context of those granted against persons unknown [89, 93].
3. Gammell decided, and Ineos accepted, that injunctions, whether interim or final, could validly be granted against newcomers [99]. In particular, the effect of Gammell is that a newcomer who knowingly violates the terms of an injunction – whether interim or final - automatically becomes a party by their acts of violation [30-31].
4. Canada Goose was inconsistent with Gammell and Ineos. Accordingly, under the doctrine of precedent the Court was entitled to follow Gammell and not Canada Goose [99-100].
5. The Judge had been wrong to follow Canada Goose and had misunderstood the Supreme Court decision in Cameron. He should have applied Gammell, Ineos, and Bromley.
6. The circumstances in which final injunctions may be granted in unauthorised encampment cases against newcomers are as summarised in Bromley at [99-109], subject to comments made by the Master of the Rolls [103-106].
7. Such final injunctions may also be appropriate in other cases, but it would be inappropriate to lay down further limitations. Although such cases are certainly exceptional, that does not mean that other categories may not in future be shown to be proportionate and justified (such as 'urban exploring' injunctions) [120].
8. Section 187B TCPA 1990 imposes the same procedural limitations on applications for injunctions of the type raised by the claims as does section 37 SCA 1981 [117].

Comment

This is a very important judgment which restores the law to what it had been assumed to be before the Canada Goose litigation, which Nicklin J had purported to follow.

Not least this is because the effect of Nicklin J's judgment was not limited to injunctions which principally impacted upon the Gypsy and Traveller community. It applied to any case where a local authority had sought injunctive relief, including borough-wide relief, against "Persons Unknown", whether relying on common law torts or statutory powers. It applied 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 applied, in particular, to all applications for precautionary relief and – in substance – removed this jurisdiction from a local authority's armoury.

The position is now, again, that local authorities may seek precautionary final injunctive relief against newcomers. This includes under section 187B TCPA 1990. Private landowners, including housing associations, may similarly seek such relief to restrain threatened trespasses and private nuisances.

Ranjit Bhose QC and Wayne Beglan are barristers at Cornerstone Barristers.

Ranjit acted for the appellants, LB Hillingdon and LB Richmond (leading Steven Woolf of Gatehouse Chambers), instructed by Byron Britton of South London Legal Partnership. Ranjit also acted for Canada Goose in the Court of Appeal in 2020.

Wayne acted for one of the interveners, Basildon Borough Council, instructed by Basildon Borough Council.

Ranjit and Wayne will host a webinar on Thursday 20 January 2020 at 11am to explain the judgment and its practical implications for those seeking precautionary injunctions against Persons Unknown (including newcomers).

You can register your place here.