The revival of injunctions against persons unknown

Michelle Caney explains the key developments leading up to a recent Court of Appeal judgment on final injunctions against 'newcomers', and analyses the ruling's effect and the implications for future cases.

In an important judgment handed down on 13 January 2022 [1], the Court of Appeal overturned the decision of the High Court [2] and held that the court has jurisdiction to grant final injunctive relief against unknown persons who may - in the future - set up unauthorised encampments (‘newcomers’). Although the judgment concerned unauthorised encampments, it is not limited to such cases and has wide-reaching implications for injunctions against persons unknown generally. 

Traveller injunctions

To put the decision into context, it is helpful to understand how numerous ‘wide’ injunctions prohibiting unauthorised encampments came to be made across England.

Essentially, the process began in 2015 with Harlow District Council v Stokes [2015] EWHC 953. The prohibition on encampments in that borough, and the perception that the injunction had been effective in deterring future encampments, led to a large number of applications in 2017–2019. By 2020, 38 such injunctions were in place nationwide.

In Bromley LBC v Persons Unknown [2020] EWCA Civ 12, Coulson LJ observed at [11] that: “it would be unrealistic to think that their widespread use has not led to something of a feeding frenzy in this contentious area of local authority responsibility”. One of the injunctions considered in Bromley was granted to Wolverhampton City Council in 2018. This prohibited encampments on 60 sites for a three year period, subject to review after 12 months. This article will track its progress alongside the changing legal landscape.

Changing legal landscape

In the 12 linked appeals heard by the Court of Appeal between 30 November 2021 and 2 December 2021, it was common ground that the legal landscape concerning proceedings against persons unknown had transformed in recent years. The key decisions forming the substance of the Court’s analysis were:

1. Bloomsbury Publishing Group v News Group Newspapers [2003] 1 WLR 1633: This case opened up the possibility of a wider jurisdiction to grant injunctions against persons unknown than previously contemplated. The claimant was the publisher of the Harry Potter novels. Copies of the latest book had been stolen and offered to the press by unknown persons. Sir Andrew Morritt VC granted an injunction against “the person or persons who have offered… newspapers a copy of the book… and the person or persons who have physical possession of a copy of the said book” on 21 May 2003. Publication of the book was due on 23 June 2003, so the injunction had the effect of final relief even though there was never going to be a trial. The Judge saw no bar to granting such an injunction against persons unknown, providing that the description of persons to whom it applied was sufficiently clear.

2. Hampshire Waste Services Ltd v Intending Trespassers Upon Chineham Incinerator Site [2004] Env. L. R. 9: This was a protester case, in which Sir Andrew Morritt VC granted a without notice injunction against unidentified “[p]ersons entering or remaining without the consent of the claimants, or any of them, on any of the incinerator sites...in connection with the ‘Global Day of Action Against Incinerators’”. This applied to anyone who may turn up to protest on that day.

3. South Cambridgeshire District Council v Persons Unknown [2004] EWCA Civ 1280: The Court of Appeal granted a without notice interim injunction against persons unknown causing or permitting hardcore to be deposited, or caravans to be stationed, on specified land. The injunction was granted under section 187B of the Town and Country Planning Act 1990 (“TCPA 1990”). The Court was satisfied that section 187B gave it power to make such an injunction against persons unknown.

4. South Cambridgeshire District Council v Gammell [2006] 1 WLR 658: Conjoined appeals in two sets of committal proceedings brought following injunctions made against persons unknown under section 187B. Both defendants sought to challenge the injunctions. Crucially, the Court of Appeal held they became a party when they entered onto the land in breach of the injunction – they were therefore newcomers to the proceedings but were still bound. At [32], the Master of the Rolls observed:

“In each of these appeals the appellant became a party to the proceedings when she did an act which brought her within the definition of defendant in the particular case. Thus in the case of [Ms Maughan] she became a person to whom the injunction was addressed and a defendant when she caused her three caravans to be stationed on the land on 20 September 2004. In the case of [Ms Gammell] she became both a person to whom the injunction was addressed and the defendant when she caused or permitted her caravans to occupy the site. In neither case was it necessary to make her a defendant to the proceedings later.”

5. Secretary of State for the Environment v Meier [2009] UKSC 11: In this case, the Supreme Court held that it was not possible to grant a pre-emptive ‘wide’ possession order in relation to areas of land not yet trespassed upon. However, it was permissible to grant an injunction to prevent threatened trespass, including against persons unknown. Although the case did not concern newcomers, Lord Rodger made some general comments applicable to injunctions made against persons unknown and approved of the way that the Vice Chancellor had overcome procedural problems in cases concerning persons unknown in Bloomsbury and Hampshire Waste.

Pausing there, it was on the basis of the above case law that Wolverhampton City Council sought and was granted an injunction against persons unknown prohibiting unauthorised encampments on 60 vulnerable sites in October 2018. Jefford J was satisfied the court had jurisdiction to grant an injunction against persons unknown and that this was just and proportionate (Wolverhampton City Council v Persons Unknown [2018] EWHC 3777). However, Jefford J listed the injunction for review after 12 months in light of the local authority confirming that it was in the process of establishing a transit site. The proposed transit site recognised that there is a balance to be struck between the protection of sites from unauthorised encampments and the provision of facilities for those who choose to adopt a nomadic lifestyle, whilst the review provision enabled the court to keep the injunction under consideration if the transit site did not come to fruition [11].

Following the grant of Wolverhampton City Council’s original injunction in 2018, the authorities started to pull in different directions:

1. Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6: This was not an injunction case but rather concerned a claim brought against a hit and run driver who was unknown. Relying upon the body of authority concerning injunctions outlined above, the Court of Appeal held that it was possible to sue such an unnamed person “wherever justice requires it”. The Supreme Court disagreed. Giving the leading judgment, Lord Sumption held (at [17]) that it is a fundamental principle of justice that a person cannot be made subject to the court’s jurisdiction without having such notice of the proceedings as would enable him to be heard. Lord Sumption identified (at [13]) two categories of defendants: (i) anonymous defendants who are identifiable but unknown (such as squatters); and (ii) defendants who are not only anonymous but cannot even be identified. In the case of a hit and run driver, it is not possible to identify that person and communicate with them or serve them with proceedings. As such, the court could not have jurisdiction over them. The claim thus failed.

2. Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100: Ineos was argued in the Court of Appeal two weeks after the Supreme Court handed down judgment in Cameron. It concerned an interim injunction granted against persons unknown who were protesting against fracking activities. The Court of Appeal formed the view (at [29]-[30]) that the two categories of defendants identified in Cameron did not concern the type of defendant at whom the injunction in Ineos was targeted i.e. those defendants who do not yet exist but will come into being when they breach the order. As a result, Cameron was not a bar to the injunction made in that case. The Court of Appeal tentatively framed the requirements for the grant of such relief at [34].

3. Cuadrilla Bowland Ltd v Persons Unknown [2020] 4 WLR 29: The Court of Appeal considered committals for breach of a final injunction preventing persons unknown from trespassing on land in connection with fracking. Leggatt LJ summarised the effect of Ineos as being that there was no conceptual or legal prohibition on: (a) suing persons unknown who were not currently in existence but would come into existence if and when they commit a threatened tort; or (b) granting injunctions to restrain such persons from committing a tort which has not yet been committed [48]. The Court of Appeal clarified point (4) of the earlier guidance given in Ineos (at [34]).

4. Bromley LBC v Persons Unknown [2020] EWCA Civ 12: This was the first occasion when the gypsy and traveller community were represented by interveners in the High Court and full argument was heard on whether a ‘de facto’ borough wide injunction ought to be granted against persons unknown. The High Court held that a fly tipping injunction could be made, but dismissed the claim for an unauthorised encampment injunction. Bromley LBC appealed unsuccessfully to the Court of Appeal. In essence, it was held that the High Court Judge was entitled to find that the injunction was not proportionate. At the invitation of the parties, Coulson LJ gave extensive guidance (at [99]-[109]) on the circumstances in which such an injunction may be granted. Whilst the guidance given undoubtedly sets a high bar when seeking an injunction in such a case, it can be seen from [108] that Coulson LJ specifically rejected the submission that an injunction of this kind can never be made. This judgment represents essential reading for any local authority contemplating seeking an injunction preventing unauthorised encampments by gypsies and travellers.

5. Canada Goose UK Ltd v Persons Unknown [2020] EWCA Civ 202: This appeal was considered by the Court of Appeal three months after Bromley. It concerned an application by Canada Goose to restrain protests to protect its commercial interests. At first instance, Nicklin J dismissed an application for summary judgment and discharged an interim injunction against persons unknown. This decision was upheld on appeal. The Court of Appeal held that it was possible to grant an interim injunction against persons unknown binding upon newcomers, but not a final injunction [89]:

“A final injunction cannot be granted in a protestor case against “persons unknown” who are not parties at the date of the final order, that is to say Newcomers who have not by that time committed the prohibited acts and so do not fall within the description of the “persons unknown” and who have not been served with the claim form. There are some very limited circumstances, such as in Venables -v- News Group Newspapers Ltd [2001] Fam 430, in which a final injunction may be granted against the whole world. Protestor actions, like the present proceedings, do not fall within that exceptional category. The usual principle, which applies in the present case, is that a final injunction operates only between the parties to the proceedings: Attorney General -v- Times Newspapers Ltd (No.3) [1992] 1 AC 191, 224. That is consistent with the fundamental principle in Cameron [17] that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.”

Pausing again, following the Court of Appeal handing down judgment in Bromley and Canada Goose, Wolverhampton City Council’s injunction returned to the High Court for its second review before Martin Spencer J in July 2020 (Wolverhampton City Council v Persons Unknown [2020] EWHC 2280). By that stage, planning permission had been granted for its proposed transit site but it was still under development. At that hearing, the High Court received submissions from one of the traveller interveners in the appeal under consideration in this article. Those submissions argued that the injunction granted to Wolverhampton did not comply with the guidance in Bromley and that, in any event, a final injunction could not be made against persons unknown in light of Canada Goose. Both of those arguments were rejected by Martin Spencer J who upheld the injunction.

Cohort claims

As noted above, 38 local authorities had obtained injunctions prohibiting unauthorised encampments by 2020. One of those local authorities was the London Borough of Enfield which made an application to extend its original injunction when it came to the end of its term. That application came before Nicklin J in the Royal Courts of Justice on 2 October 2020. When it did, Nicklin J raised the issues in Canada Goose and questioned whether the court could extend an injunction beyond its term. Nicklin J also raised concerns more generally about the number of similar ‘traveller injunctions’ obtained by local authorities.

As a result of that hearing, Nicklin J decided to “call in” all 38 injunctions, and transfer them to the RCJ for reconsideration (described as the ‘Cohort Claims’). After calling in the cases, Nicklin J ordered the local authorities to complete questionnaires confirming whether their injunctions complied with Bromley and Canada Goose and proving that service had been validly effected. As a consequence, a number of the local authorities’ injunctions were discharged. The remaining local authorities wished to maintain their injunctions.

As Nicklin J was concerned that the court did not have jurisdiction to grant final injunctions against persons unknown following Canada Goose, he listed the remaining cases for a ‘preliminary issues’ hearing in January 2021. Three traveller organisations intervened to represent the interests of the gypsy and traveller community. Following a two day hearing, Nicklin J decided that the court could not grant final injunctions against persons unknown. In a 129 page judgment handed down on 12 May 2021 (Barking and Dagenham and Others v Persons Unknown and Others [2021] EWHC 1201), Nicklin J concluded that:

1. The court retained jurisdiction to consider the terms of final injunctions granted against persons unknown because their terms: (a) expressly provide for the continuing jurisdiction of the court; and, in any event (b) apply to “newcomers” who were not parties to the proceedings when the relevant order was granted.
2. The injunctions granted in the Cohort Claims: (1) were subject to the principle – from Spycatcher and endorsed by the Court of Appeal in Canada Goose – that a final injunction operates only between the parties to the proceedings; and (2) do not fall into the exceptional category of civil injunction that can be granted contra mundum (i.e. against the world).

As a result of his findings, the Judge held that the court did not have jurisdiction to make final injunctions against persons unknown. He therefore discharged those injunctions.

Whilst Nicklin J’s decision was made in the context of ‘traveller injunctions’, his judgment made clear (at [175]) that it was “of universal application to civil litigation in this jurisdiction”. It therefore effectively removed the ability to obtain effective injunctive relief against persons unknown in a wide range of cases where injunctions had previously been made e.g. car cruising, illegal raves, urban explorers, travellers, trespassing protestors.

Court of Appeal

Of those appearing before Nicklin J, 15 local authorities appealed the decision to the Court of Appeal. The three traveller interveners were once again granted permission to intervene. HS2 and Basildon Borough Council also intervened in the appeal and supported the local authorities’ appeals.

Over three days of argument, the Court of Appeal (Sir Geoffrey Vos MR, Lewison LJ and Laing LJ) grappled with difficult issues of precedent and sought to piece together conflicting decisions. The major stumbling block for the local authorities was Canada Goose, which Nicklin J held applied to injunctions generally including traveller injunctions. To overcome that hurdle, the local authorities argued that what the Court of Appeal said in Canada Goose at [89] was not part of its essential reasoning and therefore was not binding. Alternatively, it was 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 Gammell, Ineos and Bromley.

On the issue of precedent, the Master of the Rolls outlined (at [98]) the effect of the decision in Young v Bristol Aeroplane Co Ltd [1944] KB 718. In essence, that case recognises three exceptions to the rule that the Court of Appeal is bound by its previous decisions:

1. First, the Court of Appeal can decide which of two conflicting decisions of its own it will follow.
2. Secondly, the Court of Appeal is bound to refuse to follow a decision of its own which cannot stand with a subsequent decision of the Supreme Court.
3. Thirdly, the Court of Appeal is not bound to follow a decision of its own if given without proper regard to previous binding authority.

After carefully analysing the decisions at paragraph 5 and 7 above, the Master of the Rolls concluded at [99]:

“In my judgment, it is clear that Gammell decided, and Ineos accepted, that injunctions, whether interim or final, could validly be granted against newcomers. Newcomers were not any part of the decision in Cameron, and there is and was no basis to suggest that the mechanism in Gammell was not applicable to make an unknown person a party to an action, whether it occurred following an interim or a final injunction. Accordingly, a premise of Gammell was that injunctions generally could be validly granted against newcomers in unauthorised encampment cases. Ineos held that the same approach applied in protester cases. Accordingly, [89]-[92] of Canada Goose were inconsistent with Ineos and Gammell. Moreover, those paragraphs seem to have overlooked the provisions of the CPR that I have mentioned at [89] above. For those reasons, it is open to this court to apply the first and third exceptions in Young. It can decide which of Gammell and Canada Goose it should follow, and it is not bound to follow the reasons given at [89]-[92] of Canada Goose, which even if part of the court’s essential reasoning, were given without proper regard to Gammell, which was binding on the Court of Appeal in Canada Goose.”

Free from the strictures of being bound to follow Canada Goose, the Court of Appeal concluded that Nicklin J was wrong to find that the court could not grant final injunctions against persons unknown. Crucially, the Court held that:

1. The court has the power under section 37 of the Senior Courts Act 1981 to grant an injunction that binds non-parties to proceedings [71].
2. Section 37 is a broad provision providing expressly that "the High Court may by order (whether interlocutory or final) grant an injunction, in all cases in which it appears to the court to be just and convenient to do so". The courts should not cut down the breadth of that provision by imposing limitations which may tie a future court’s hands [72], [120].
3. Contrary to Canada Goose, 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. The judge was wrong to take as the “starting point” the “fundamental difference” between interim and final injunctions. Gammell, Cameron and Ineos drew no such distinction [74]. There is no real distinction, particularly in the context of orders against persons unknown [89, 93].
5. The guidance given in Bromley required some qualification regarding the extent to which Article 8 of the ECHR is applicable in such a case [102]-[108].
6. Section 187B TCPA 1990 did not add anything to the power in section 37 and imposes the same procedural limitations on applications for injunctions of the type raised by the claims as does section 37 [117].
7. It was undesirable for the court to lay down limitations on the scope of section 37. Persons unknown injunctions have been granted in cases of unauthorised encampment and may be appropriate in other cases. Such cases are acknowledged to be “exceptional”, but that does not mean that other categories will not in future be shown to be proportionate and justified (such as 'urban exploring' injunctions) [120].
8. Whilst the procedure adopted by Nicklin J was unorthodox and unusual in that he called in final orders for revision, no harm had actually been done. Conversely, it had been possible to undertake a comprehensive review of the law applicable in an important field [123].

Practical guidance

There is now a body of authority dealing with precautionary (traditionally 'quia timet') injunctions against persons unknown, to which careful regard must be had when considering seeking an injunction. Drawing together the various strands in the case law:

1. It is permissible to grant an injunction against persons unknown, providing that the description used is sufficiently certain to identify those who are included and those who are not (Bloomsbury [21]). The “persons unknown” must be defined in the originating process by reference to their conduct which is alleged to be unlawful (Canada Goose [82(1)]). It is therefore important to ensure that the description used for persons unknown in the proceedings is carefully thought out and clearly drafted.

2. Applying the guidance in Ineos [34] (as qualified in Cuadrilla [50]), to secure injunctive relief against persons unknown, the evidence must establish that:

(a) There is a sufficiently real and imminent risk of a tort being committed to justify precautionary relief;

(b) It is impossible to name the persons who are likely to commit the tort unless restrained;

(c) It must be possible to give effective notice of the injunction and for the method of such notice to be set out in the order;

(d) Whilst it is undoubtedly desirable that the terms of an injunction should correspond to the threatened tort and not be so wide as to prohibit lawful conduct, this is not an absolute rule (see Cuadrilla [50]);

(e) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do; and

(f) The injunction should have clear geographical and temporal limits.

3. If it is possible to name or identify certain individuals who are likely to commit the tort, they must be identified and made individual parties (Canada Goose [82(1)]) in addition to seeking an injunction against persons unknown by description. In future, courts are likely to expect applicants to make efforts to identify individual defendants. The evidence should outline what steps have been taken and, if it has not been possible to identify any specific defendants, the evidence should explain why.

4. Early consideration should be given as to how alternative service of the proceedings and any injunction can be effected upon persons unknown to bring it to their attention (South Cambridgeshire [11]; Ineos [34(4)]). In Wolverhampton’s case, an extensive set of steps was taken by the local authority to publicise the original application, each review hearing and the injunctions granted. This included displaying the injunctions and erecting signs at each site, publishing press releases in local newspapers, a social media campaign, publishing details of the application on its website and a video on YouTube, and making the papers available online and at the local authority’s offices.

5. Providing that effective service takes place to bring any injunction to the attention of a newcomer, they will automatically become a party to the proceedings if and when they violate the injunction and bring themselves within the definition of a defendant (Gammell [32]; Barking and Dagenham [85]).

6. The length of any injunction sought will be carefully scrutinised by the court, and must be limited to what is strictly proportionate and necessary. As a general rule, injunctions should be limited in time. In Barking and Dagenham a guideline of one year at a time before a review was suggested. In Bromley, Coulson LJ approved of the approach taken by Jefford J in Wolverhampton’s case, which involved a three year injunction being granted, subject to a review hearing after 12 months [106].

7. In future, the inclusion of a review provision may become a common feature of injunctions against persons unknown (Bromley [106]; Barking and Dagenham [107]).

8. In any event, it is important to ensure that any injunction sought against persons unknown includes provision for liberty to apply so that a newcomer can apply to the court to set it aside if they wish to argue that it should not apply to them (Mid-Bedfordshire District Council v. Brown [2005] 1 WLR 1460 [25]; Gammell [30]).

9. In an unauthorised encampment case aimed at the gypsy and traveller community, the guidance in Bromley must be followed by a local authority seeking an injunction, subject to the qualifications at [103] – [107] of Barking and Dagenham. In summary:

(a) Local authorities must regularly engage with the gypsy and traveller community. If a local authority considers that an injunction is the only way forward, then it will still be important to engage with the gypsy and traveller community before seeking any such order (Bromley [102] – [103]; Barking and Dagenham [107]).

(b) Welfare assessments should be carried out, particularly in relation to children (Bromley [103]; Barking and Dagenham [107]).

(c) An up-to-date Equality Impact Assessment is important because the impact on the gypsy and traveller community will vary from area to area (Bromley [103]).

(d) Credible evidence of criminal conduct in the past, and/or of likely risks to health and safety, are important if a wide injunction is being sought (Bromley [106]).

(e) The following considerations should at the forefront of a local authority’s mind when considering whether an injunction should be sought (Bromley [104]):

(i) Injunctions against persons unknown are exceptional because they tend to  avoid the protections of adversarial litigation and Article 6 of the ECHR.

(ii) In order for proportionality to be met, it is important that local authorities understand and respect the gypsy and traveller community's culture, traditions and practices, in so far as those factors are capable of being realised in accordance with the rule of law (Barking and Dagenham [107]).

(iii) The equitable doctrine of 'clean hands' may require local authorities to demonstrate that they have complied with their general obligations to provide sufficient accommodation and transit sites. The evidence should include what alternatives are available, such as transit or negotiated stopping (Bromley [108(a) and (e)]). The submission that they can “go elsewhere” or occupy private land is not sufficient (Bromley [108(c)]).

(f) Common sense requires the court, when carrying out the proportionality exercise, to have regard to the cumulative effect of other injunctions. A local authority should therefore investigate which other authorities have similar injunctions and what other site provision is available to show the order is proportionate. In the Midlands, there are a number of transit sites. This factor helped to persuade Martin Spencer J that Wolverhampton’s injunction should continue when it was reviewed in July 2020 (See: [2020] EWHC 2280 [23]).

(g) Borough-wide injunctions are inherently problematic as they give the gypsy and traveller community no room for manoeuvre. A targeted approach which identifies particularly vulnerable sites and justifies each site to be protected is much more likely to be considered proportionate (Bromley [70], [105]).

Conclusion

The upshot of the Court of Appeal’s judgment is that a final injunction can (in appropriate cases) be obtained against persons unknown which will be binding upon newcomers. However, the Master of the Rolls’ observation (at [120]) that such cases are “certainly exceptional” shows that such orders will not be granted as a matter of course. It is essential for any applicant to carefully follow the guidance in the surrounding case law to satisfy the court that the order sought is just, necessary and proportionate in all the circumstances.

There are now two inconsistent Court of Appeal decisions on a fundamental issue of principle. Both decisions involved a (different) Master of the Rolls, less than two years apart, and it is impossible to ignore how divergent the views are. The issues at stake are plainly matters of general public importance in an area of developing jurisprudence. An application for permission to appeal to the Supreme Court has been made by the traveller interveners in Barking and Dagenham but no decision has been made at the time of writing. What was said by the Court of Appeal may therefore not be the last word on the matter.

Michelle Caney is a barrister at St Ives Chambers.

[1] London Borough of Barking and Dagenham and Others v Persons Unknown and Others [2022] EWCA Civ 13

[2] London Borough of Barking and Dagenham and Others v Persons Unknown and Others [2021] EWHC 1201