Granting injunctions against ‘newcomers’ — practical guidance from property litigators

The Supreme Court’s decision in Anglo International Upholland Ltd v Wainwright [2023] 5 WLUK 613 confirmed the court’s power to grant injunctions against so-called ‘newcomers’. In the second of two articles, Helena Davies, Oskar Musial, Laura Tweedy and Gemma de Cordova consider the recent developments in newcomer injunctions and how that was dealt with in Upholland.

Conflicting Court of Appeal decisions

Critically, the Upholland case was heard by the High Court after the Supreme Court had heard argument but before it had issued the decision in Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47. 

When handed down in November 2023, the Supreme Court decision confirmed the court’s power to grant injunctions against ‘newcomers’. Prior to this judgment, there was legal tension between conflicting Court of Appeal decisions in Wolverhampton City Council and others v London Gypsies and Travellers and others (cited as Barking and Dagenham LBC v Persons Unknowns [2022 EWCA Civ 13) and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303 about whether newcomer injunctions could be final. 

In Wolverhampton, the Court of Appeal had decided in favour of final injunctions against newcomers being permissible in law. In Canada Goose, it decided that they weren’t. 

Many of the key themes that fell for consideration in Upholland have been addressed by the Supreme Court in Wolverhampton. The Supreme Court provided a comprehensive analysis of relevant case law to date and set out a useful framework for how such applications should be approached in the future. 

Injunctions against ‘non-parties’

An applicant’s entitlement to obtain an injunction against an unknown party is a long-established equitable remedy (see Manchester Corporation v Connolly [1970] Ch 420).

The Wolverhampton appeal concerned a number of conjoined cases in which injunctions had been sought by local authorities to prevent unauthorised encampments by Gypsies and Travellers who might, in future, camp in a particular place but the individuals couldn’t usually be identified in advance. Generally, proceedings were issued against (and indeed, injunctions were granted against) ‘persons unknown’.

The Supreme Court recognised that while the specific appeal arose in the context of unlawful encampments, the issues raised were of wider significance (para.3) given the rise in the use of injunctions against newcomers in a variety of different contexts (the Supreme Court also stated that nothing said should be taken as prescriptive in relation to newcomer injunctions in other cases, see para.235) including industrial picketing, environmental and other protests, breaches of confidence, breaches of intellectual property rights and a wide range of activities related to social media. 

The Supreme Court noted (at para.3) that: “The issue is liable to arise whenever there is a potential conflict between the maintenance of private or public rights and the future behaviour of individuals who cannot be identified in advance… If injunctions are available only against identifiable individuals, then the anonymity of wrongdoers operating online risks conferring upon them an immunity from the operation of the law.”

In Upholland, it was the sharing of information online about accessing the land in question and the encouragement to visit the same that the applicant landowners were seeking to safeguard against.

The Supreme Court noted that “…2003 saw a rapid development of the practice of granting injunctions purporting to prohibit persons, described as persons unknown, who were not parties to the proceedings when the order was made, from engaging in specified activities including, of most direct relevance to this appeal, occupying and using land without the appropriate consent. This is just one of the areas in which the court has demonstrated a preparedness to grant an injunction, subject to appropriate safeguards, against persons who could not be identified, had not been served and were not party to the proceedings at the date of the order.” (para.57)

What is a newcomer?

So, what’s the difference between a ‘person unknown’ and a ‘newcomer’? 

A newcomer is a person who makes themselves a party to the injunction by carrying out the prohibited conduct or behaving in the offending way where that particular person wasn’t anticipated to be a defendant when the injunction was sought or — as put by the Supreme Court — a person that was “…truly unknowable at the time of the grant…” (para. 143(i)). 

On the other hand, while persons unknown aren’t known by name, they are known as part of a group or as an individual defined by their activities or location. 

With regards to newcomers being Defendants, the Supreme Court said (at para. 140) “…An ordinarily law-abiding newcomer, once notified of the existence of the injunction (eg by seeing a copy of the order at the relevant site or by reading it on the internet), may be expected to comply with the injunction rather than act in breach of it. At the point of compliance that person will not be a defendant, if the defendants are defined as persons who behave in the manner restrained. Unless they apply to do so they will never become a defendant…”.

A new type of injunction 

The Supreme Court stated (at para.142) that the starting point in considering whether injunctions against newcomers should be made at all — and if so, by reference to what principles and subject to what safeguards — is to recognise that “…injunctions against newcomers are in substance always a type of without notice injunction, whether in form interim or final…Viewed in that way they then need to be set against the established categories of injunction to see whether they fall into an existing legitimate class, or, if not, whether they display features by reference to which they may be regarded as a legitimate extension of the court’s practice.”

The Supreme Court then identified a number of distinguishing features before concluding (at paras.144-145) that the newcomer injunction was “in no doubt… a wholly new type of injunction with no very closely related ancestor from which it might be described as evolutionary offspring, although analogies can be drawn .... It is in some respects just as novel as were the new types of injunction listed in sub-paragraph (viii) above, and it does not even share their family likeness of being developed to protect the integrity and effectiveness of some related process of the court…it is not even that closely related to the established quia timet injunction, which depends upon proof that a named defendant has threatened to invade the claimant’s rights…Faced with the development by the lower courts of what really is in substance a new type of injunction, and with disagreement among them about whether there is any jurisdiction or principled basis for granting it, it behoves this court to go back to first principles about the means by which the court navigates such uncharted water.”

Final injunctions against newcomers?

The Supreme Court said the following about the tension between interim and final newcomer injunctions (at para. 139): “…we consider that this constant focus upon the duality of interim and final injunctions is ultimately unhelpful as an analytical tool for solving the problem of injunctions against newcomers. 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.”

In Upholland, a long return date was sought on the interim injunction. Upholland was decided before the Supreme Court gave the above judgment, so the injunction sought in Upholland case was an interim one with a two-year return date — but in essence, the lawyers were trying to create a hybrid between interim and final. 

His Honour Judge Bird concluded in that case at paras 11 and 12: “…I accept that a return date of some two years from now would be appropriate. I have been persuaded of that because it is hoped that in the next two years some progress will be made with the site. It may be developed in one way or another, or it is possible that it will be subject to further securing.  I have considered if such a long return date is unfair to Mr Wainwright or the second defendant. I have come to the conclusion that it is not because the order will make express provision for Mr Wainwright or others to make an application to set aside or vary this order.” 

This was in-line with what the Supreme Court said (at para. 143(vii)) — namely that this type of injunction, even when in interim form, tends to be “… sought for its medium to long term effect even if time-limited, rather than as a means of holding the ring in an emergency, ahead of some later trial process…”

The Supreme Court has now sorted out this tension, with newcomer injunctions able to be interim or final (para.238(i)). Perhaps best practice will become “…final (but regularly reviewable injunctions)…” (para. 187) of one year. It remains to be seen whether the Supreme Court’s conclusion that newcomer injunctions in the travellers’ context ought to come to an end “by effluxion of time in all cases after no more than a year…” (para.225) is applied in other cases involving this type of injunction. Applicants for newcomer injunctions should be alive to this issue when preparing the application and be prepared to justify the geographical and temporal limits sought.

Practical guidance on newcomer injunctions

The Supreme Court addressed the practical application of the principles affecting newcomer injunctions (against Gypsies and Travellers) and the safeguards that should accompany the making of such an order in the knowledge that these would inevitably evolve over time. 

1. Any applicant seeking to obtain a ‘newcomer injunction’ in any context ought to have regard to the guidance which we’ve sought to summarise here.
2. The court will be guided by principles of justice and equity when deciding whether to grant the injunction (para. 238(iii)) and equity can provide a remedy to vindicate the rights in issue where the law is inadequate.
3. The applicant must satisfy the court with detailed evidence that there’s compelling justification for the order sought (para. 188). In Upholland, a lot of time and effort went into preparing the application to ensure that the court had a full picture of what the trespassers had been doing and also what steps the applicant had taken to try to prevent the trespass (including a comprehensive set of security measures).
4. There must be evidence of a strong possibility of trespass (or other tort or planning breach) and the threat must be real and imminent (para. 218).
5. The actual or intended respondents to the application must be defined as precisely as possible — whether by name or some other means (para. 221). Even in the case of newcomers, the possibility of identifying them as a class by reference to prior conduct and/or intention, should be explored and adopted if possible. 
6. The injunction should spell out clearly and in everyday terms the full extent of the acts it prohibits (para. 224). The Supreme Court also emphasised that legal terms such as ‘trespass’ and ‘nuisance’ shouldn’t be used to describe the prohibited acts. In so far as possible, the use of non-technical and readily comprehensible language should be used. 
7. The order shouldn’t extend beyond that which is necessary to achieve the purpose for which it is granted (para. 222). 
8. Full and frank disclosure must be given (para. 231), along with showing why it’s just and convenient in all the circumstances for the court to grant the order sought (paras. 171, 189).
9. If there’s any conduct which — when viewed on its own — would be lawful, the applicant should be prepared to satisfy the court that there’s no other more proportionate way to protect the rights in question (para. 223). In Upholland, particular care was taken when drafting the application and draft order when seeking to prohibit acts that would otherwise be lawful, such as the posting and sharing of images and information on social media.
10. Applicants should give careful thought to the geographical and temporal limits of any order sought (para. 225).
11. It’s of utmost importance for injunctions of this kind to be reviewed periodically (para. 225). The Supreme Court took the view that subject to any order of the judge, such orders ought to come to an end by effluxion of time in all cases and after no more than a year unless an application was made for renewal. In light of the Supreme Court guidance, it’s anticipated that applicants will need good evidence and justification for any order or review date sought beyond the recommended 12 months.
12. Applicants must take reasonable steps to bring the application to the attention of the proposed defendants in advance (paras. 226, 231). Case law and experience demonstrates that applications for substituted service are typical and applicants will need to think creatively as to how matters might be brought to the attention of the proposed defendants. 
13. Once the injunction has been obtained, applicants must take steps to actively bring the order to the attention of those people likely to be impacted by the making of the order (para. 230). This includes the steps that were undertaken in the Upholland case such as posting notices around the perimeter of the site and making relevant documents available online via use of a QR code. An applicant must make full and complete disclosure of the steps that it proposes to take.
14. Orders of this kind ought to include a generous liberty to apply provision to allow anybody affected by its terms to apply to vary or discharge the order (para. 232).
15. While the Supreme Court didn't deal with costs protections and a cross-undertaking in damages in any detail in the Wolverhampton case, it was acknowledged that these issues might fall to be considered in appropriate cases by a judge making a decision to make or continue and order (paras. 233-234).

Preparation is key

Injunctions against newcomers are a new type of order and don’t easily fit into any of the earlier categories of injunction. The distinctions drawn between interim and final injunctions in some of the earlier case law for the purposes of who is a party to such proceedings has been deemed unsatisfactory by the Supreme Court in Wolverhampton. 

Landowners can reach for this equitable remedy as a pre-emptive strike against those who threaten trespass on their land. However, preparation is key — any proposed application must have stringent regard to the practical guidance in Wolverhampton (summarised above). 

Helena Davies is a partner and Oskar Musial is a solicitor at Brabners. Laura Tweedy and Gemma de Cordova are barristers at Gatehouse Chambers.

See also: Methods of service when seeking interim injunctions against persons unknown - A recent landmark decision may allow novel and unusual methods of service in welcome news for landowners who seek to prevent trespassing by persons unknown, write Helena Davies, Oskar Musial, Laura Tweedy and Gemma de Cordova.