High Court issues key ruling on "Traveller Injunctions" and "persons unknown", criticises suspected procedural breaches and abuse of court procedures in applications for interim orders

There are grounds to suspect that, in a significant number of applications by local authorities for interim injunctions against “Persons Unknown” targeting unauthorised encampments on land, there were material and serious breaches of the procedural requirements and the procedures of the Court – and the Interim Applications Court of the Queen’s Bench Division (Court 37) in particular – have been abused, a High Court judge has concluded.

The case of London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors [2021] EWHC 1201 (QB) addressed issues of principle that had arisen as to the legal basis for and scope of so-called “Traveller Injunctions”.

Mr Justice Nicklin said the central issue to be determined was whether a “final injunction” granted against “Persons Unknown” was subject to the principle that final injunctions bind only the parties to the proceedings.

The Court of Appeal in Canada Goose UK Retail Ltd -v- Persons Unknown [2020] 1 WLR 2802 held that it did. The local authorities in the claims before Mr Justice Nicklin contended that it should not.

The 38 claims in which Traveller Injunctions are known to have been granted (“the Cohort Claims”) were contained in an appendix to the judgment. The Cohort Claims were gathered together, to be managed by a single judge, in October 2020.

This was because, from mid-2020, applications had been made in some of the Cohort Claims to extend and/or vary Traveller Injunctions that were coming to the end of the period for which they had been originally granted. Following a hearing in one of these claims - that brought by LB Enfield - in September 2020 ([2020] EWHC 2717 (QB), the issues raised suggested that there was a need for a review of the entire Cohort.

In total, since October 2020, the Court has discharged the injunctions in 19 cases, i.e. half the Cohort Claims. In these cases, there were fundamental failures properly to serve the Claim Form or to obtain valid orders for alternative service on Persons Unknown, Mr Justice Nicklin said. "I have not attempted to ascertain the total number of sites that were covered by the Traveller Injunctions in these 19 cases, but they easily reach into the thousands."

The judge set out the four issues considered at a hearing in January 2021:

(1) Whether the Court has the power - either generally under CPR 3.1(7) or otherwise, or specifically having regard to the particular terms of the relevant order - to case manage the proceedings and/or to vary or discharge injunctions that have previously been granted by final order? (“The First Issue: Jurisdiction over Final Orders”)

(2) Whether the Court has jurisdiction, and/or whether it is correct in principle, generally or in any relevant category of claim, to grant a claimant local authority final injunctive relief either against “Persons Unknown” who are not, by the date of the hearing of the application for a final injunction, persons whom the law regards as parties to the proceedings, and/or on a contra mundum basis? (“The Second Issue: Final Orders against Newcomers or Contra Mundum Orders”)

(3) In the event that the Court finds that it does not have jurisdiction to grant a final injunction in the circumstances set out in (2) above, whether:

(a) it is possible to identify the Defendants in the category of persons unknown who were parties to the proceedings at the date the final order was granted and are bound by it; and

(b) insofar as the final injunction binds newcomers, it should be discharged.

(“The Third Issue: Ascertaining the parties to the Final Order”)

(4) If there is no jurisdiction to grant such final injunctive relief in all or any of the cases identified above, in what circumstances (if any) should the Court be prepared to grant interim injunctive relief against “Persons Unknown” Defendants in such a claim, in a form in which final relief would not be granted? (“The Fourth Issue: the Conundrum of Interim Relief”)

Mr Justice Nicklin concluded:

• Issue 1: Jurisdiction over Final Orders: The Court does retain jurisdiction to consider the terms of the final injunctions in the claims brought by LB Barking & Dagenham, LB Redbridge, and Basingstoke & Deane BC and Hampshire CC. "The Court has jurisdiction over these “final” injunctions 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."
• Issue 2: Final Orders against Newcomers or Contra Mundum Orders (described by the judge as the central issue): The Traveller Injunctions granted in the Cohort Claims: (1) are 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.
• Issue 3: Ascertaining the parties to the Final Order: "If the answer to the second issue is that Traveller Injunctions made by final order bind only the parties at the date of the order, then the next issue is whether the relevant local authority can identify anyone in the category of “Persons Unknown” at the time the final order was granted. If it can, then the final injunction order binds each person who can be identified. If not, then the final injunction granted against “Persons Unknown” binds nobody. Some local authorities believe that they may be able to identify people who were parties to the proceedings falling within the definition of “Persons Unknown” at the date on which the final order was granted in their case."
• Issue 4: The ‘conundrum’ of interim relief: This issue had, in fact, resolved itself as a result of consideration of, primarily, Issue 2.

Mr Justice Nicklin said that in respect of the remaining Cohort Claims, subject to further submissions at a hearing to be fixed, the following orders appeared to be consequent on the judgment:

(1) subject to (2), injunction orders against “Persons Unknown” in the claims brought by (a) LB Barking & Dagenham; (b) LB Redbridge; (c) Basingstoke & Deane BC and Hampshire CC; (d) Walsall MBC; and (e) Wolverhampton CC would be discharged;

(2) He would grant (a) LB Barking & Dagenham; (b) LB Redbridge; (c) Basingstoke & Deane BC and Hampshire CC; and (d) Walsall MBC a short period in which to identify, if they could, any defendants in the category of “Persons Unknown” who could be demonstrated to have been a defendant to the proceedings prior to the grant of the final order in the relevant claim; and

(3) in the remaining Cohort Claims, where interim injunctions have been granted, the relevant local authority would have 7 days from the date of this judgment to consider whether they wished to proceed with or discontinue their claim against “Persons Unknown”. “If they opt to proceed, I will give directions that will lead to the prompt identification of the “Persons Unknown” defendants and bring these claims speedily to a final hearing. As I have noted (see [96]-[101] above), many of the Cohort Claims have not been prosecuted with due expedition towards a final hearing. As an interim injunction currently remains in force in these claims, there must be no further delay.”

The judge said he was also minded to discharge any power of arrest that had been granted in the remaining interim injunctions against “Persons Unknown”. “The parties have not had an opportunity to make submissions on this point. They will be able to do so at the hearing which will be fixed to consider consequential orders," he added.

Mr Justice Nicklin went on to day: “[My] overall consideration of the Cohort Claims has led me to conclude that there are grounds to suspect that, in a significant number of applications for interim injunctions, there were material and serious breaches of the procedural requirements and the procedures of the Court (and Court 37 in particular) have been abused.

“As I have already noted, a significant number of the Cohort Claims were allowed to go to sleep following the grant of an interim injunction, and no local authority, which had been granted a Traveller Injunction, returned the claims to Court for reconsideration following the decisions of LB Bromley and Canada Goose. This judgment is not the place to go into these matters further, but I will ensure, so far as possible, that they will be properly investigated.”

Earlier in his judgment Mr Justice Nicklin had said that “in fairness” he should record that some local authorities had filed evidence explaining that they were under considerable strain responding to the pandemic.

“Nevertheless, local authorities which had been granted interim Traveller Injunctions and failed to take steps promptly to restore the claims seem to me to be open to potential criticism for having failed to do so….. The only reason that the Court has had an opportunity to reconsider any of these orders is because some local authorities, whose injunctions were approaching the end of the period for which they had been granted, made applications to the Court to ‘extend’ them. Although I recognise that the pandemic has placed very unusual strains on the resources of local authorities, it did not, apparently, prevent several local authorities from applying to ‘extend’ Traveller Injunctions that they had previously been granted.”

The High Court judge said that, looking to the future, the experience in the Cohort Claims demonstrated that the Court needed to adopt measures to ensure that “Persons Unknown” injunctions (and powers of arrest) are only granted in appropriate cases and are subject to proper safeguards.

Mr Justice Nicklin said that, based on the procedure that is now established for claims for interim non-disclosure orders, and reflecting the existing authorities, he considered that claims against “Persons Unknown” should be subject to the following safeguards:

(1) The “Persons Unknown” must be described in the Claim Form (or other originating process) (a) with sufficient certainty to identify those who are defendants to the claim and those who are not; and (b) by reference to conduct which is alleged to be unlawful: see [49] above.

(2) Where they apply, the Claim Form must comply with the requirements of CPR 8.2A(1) and Practice Direction 8A.

(3) The “Persons Unknown” defendants identified in the Claim Form are, by definition, people who have not been identified at the time of commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. “Persons Unknown”, against whom relief is sought, must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary, by alternative service of the Claim Form: Canada Goose principle (1).

(4) Any application for permission to serve the Claim Form on “Persons Unknown” must comply with CPR 6.15(3) and the claimant must demonstrate, by evidence, that the proposed method of alternative service is such as can reasonably be expected to bring the proceedings to the attention to all of those in the category of “Persons Unknown” sought to be made defendants to the proceedings: Cameron principle (4); and any order under CPR 6.15 must comply with CPR 6.15(4).

(5) Applications for interim injunctions against “Persons Unknown” must comply with the requirements of Practice Direction 25A (see [83] above) and, unless justified by urgency, must be fixed for hearing and a skeleton argument provided.

(6) At the hearing of an application for an interim injunction against “Persons Unknown” the applicant should be expected to explain why it has not been possible to name individual defendants to the claim in the Claim Form and why proceedings need to be pursued against “Persons Unknown”.

(7) An interim injunction will only be granted quia timet if the applicant demonstrates, by evidence, that there is a sufficiently real and imminent risk of a tort being committed by the respondents: Canada Goose principle (3).

(8) If an interim injunction is granted:

a) the claimant should provide an undertaking to the Court to use its best endeavours to identify the “Persons Unknown” whether by name or other identifying information (e.g. photograph) and serve them personally with the Claim Form;

b) the terms of the injunction must comply with Canada Goose principles (5) to (7);

c) the Court must be satisfied that the inclusion of any power of arrest is justified by evidence demonstrating that the relevant statutory test is met; and

d) the Court in its order should fix a date on which the Court will consider the claim and injunction application further (“the Further Hearing”). What period is allowed before the Further Hearing is fixed will depend on the particular circumstances, but I would suggest it should not be more than 1 month from the date of the interim order, and in many cases a shorter period would be appropriate.

(9) At the Further Hearing, the claimant should provide evidence of the efforts to identify the “Persons Unknown” and make any application to amend the Claim Form to add named defendants. The Court should give directions requiring the claimant, with a defined period:

a) if the “Persons Unknown” have not been identified sufficiently that they fall with Category 1 “Persons Unknown”, to apply to discharge the interim injunction against “Persons Unknown” and discontinue the claim under CPR 38.2(2)(a);

b) otherwise, as against the Category 1 “Persons Unknown” defendants to apply for (i) default judgment; or (ii) summary judgment; or (iii) a date to be fixed for the final hearing of the claim,

and, in default of compliance, that the claim be struck out and the interim injunction against “Persons Unknown” discharged.

(10)  Assuming that the claimant has demonstrated an entitlement to relief against a party to the claim, in respect of any final order that is granted against “Persons Unknown” (whether by default judgment, summary judgment or after a final hearing), unless falling in the exceptional category where a contra mundum order is justified, the order:

a) can only be made against parties to the proceedings: those named defendants, or those who fall into Category 1 of “Persons Unknown”, who have been served with the Claim Form;

b) must clearly identify by description the Category 1 “Persons Unknown” defendants that are bound by the order; and

c) must not be drafted in terms that would capture newcomers, i.e. persons who are not parties when the order is granted: Canada Goose [91]-[92].

Marc Willers QC of Garden Courth Chambers, who appeared for the interveners, said: ‘"Mr Justice Nicklin’s judgment is a tour de force and will be required reading for any lawyer practising in this field. The decision reaffirms the fundamental principle that final injunctions do not bind newcomers. The Judge rejected the submission that injunctions against Gypsies and Travellers were an exception to this rule.

"The decision also emphasises the need for rigorous compliance with the rules of civil procedure, with the Judge concluding that there were grounds to suspect that there had been material and serious breaches of procedure in a significant number of cases brought by local authorities. The judgment also recognises the right of Romani Gypsies and Irish Travellers to respect for their cultural traditions, including their enshrined right to travel, as emphasised by Lord Justice Coulson in the Bromley case in 2020."