Wolverhampton City Council and others v London Gypsies and Travellers and other [2023] UKSC 47 (https://www.bailii.org/uk/cases/UKSC/2023/47.html) is an appeal concerning a number of conjoined cases in which injunctions had been sought by Local Authorities to prevent unauthorised encampments by Gypsies and Travellers. Such injunctions had generally been sought against ‘persons unknown’ as the members of a group of Gypsies or Travellers who might in future camp in a certain location were not known in advance. In some cases, the Defendants to the injunction sought had been described by reference to the conduct the injunction had sought to prohibit, for example ‘persons unknown forming unauthorised encampments within the Borough of Nuneaton and Bedworth’.
The appeal raised the question of whether (and if so, on what basis, and subject to what safeguards) the Court has the power to grant an injunction which binds persons who are not identifiable at the time when the order is granted, and who have not at that time infringed or threatened to infringe any right or duty which the claimant seeks to enforce, but may do so at a late date; those persons became known as ‘newcomers’ during the appeal.
Whilst the appeal had been raised in the context of encampments by Gypsies and Travellers, the issues have wider significance and such ‘newcomer’ injunctions have been used and considered in cases involving environmental protests (and other forms of protest) and breaches of intellectual property rights.
The judgment concludes that ‘newcomer’ injunctions have been and remain a valuable and proportionate remedy in appropriate cases, with the Supreme Court coming to the following conclusions:
“(i) The court has jurisdiction (in the sense of power) to grant an injunction against ‘newcomers’, that is, persons who at the time of the grant of the injunction are neither defendants nor identifiable, and who are described in the order only as persons unknown. The injunction may be granted on an interim or final basis, necessarily on an application without notice.
(ii) Such an injunction (a “newcomer injunction”) will be effective to bind anyone who has notice of it while it remains in force, even though that person had no intention and had made no threat to do the act prohibited at the time when the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action. It is inherently an order with effect contra mundum, and is not to be justified on the basis that those who disobey it automatically become defendants.
(iii) In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court will be guided by principles of justice and equity and, in particular:
(a) that equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue.
(b) That equity looks to the substance rather than to the form.
(c) That equity takes an essentially flexible approach to the formulation of a remedy.
(d) That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances.
These principles may be discerned in action in the remarkable development of the injunction as a remedy during the last 50 years.
(iv) In deciding whether to grant a newcomer injunction, the application of those principles in the context of trespass and breach of planning control by Travellers will be likely to require an applicant:
(a) to demonstrate a compelling need for the protection of civil rights or the enforcement of public law not adequately met by any other remedies (including statutory remedies) available to the applicant.
(b) to build into the application and into the order sought procedural protection for the rights (including Convention rights) of the newcomers affected by the order, sufficient to overcome the potential for injustice arising from the fact that, as against newcomers, the application will necessarily be made without notice to them. Those protections are likely to include advertisement of an intended application so as to alert potentially affected Travellers and bodies which may be able to represent their interests at the hearing of the application, full provision for liberty to persons affected to apply to vary or discharge the order without having to show a change of circumstances, together with temporal and geographical limits on the scope of the order so as to ensure that it is proportional to the rights and interests sought to be protected.
(c) to comply in full with the disclosure duty which attaches to the making of a without notice application, including bringing to the attention of the court any matter which (after due research) the applicant considers that a newcomer might wish to raise by way of opposition to the making of the order.
(d) to show that it is just and convenient in all the circumstances that the order sought should be made.
(v) If those considerations are adhered to, there is no reason in principle why newcomer injunctions should not be granted.”
The judgment is clear on the jurisdiction of the Court to grant ‘newcomer’ injunctions and in particular, gives guidance in respect of such applications made in the context of trespass and breach of planning control which are likely to be of assistance to any authority seeking such an injunction in future.
Members of Becket Chambers are able to assist with matters pertaining to injunctions; please contact the Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
