“Newcomer” injunctions: the evolution of equitable remedies?

A judgment has been handed down in the Supreme Court case of Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47.

The case considered whether the court had the jurisdiction to make injunctions against not only ‘persons unknown’, but also against unidentified and unknown persons that have not yet performed, or even threatened to perform, the acts which the injunction prohibits. Such persons are known as “newcomers”.

Case background

Between 2015 and 2020, a number of local authorities including Wolverhampton City Council sought - and were granted - both interim and final injunctions.

The injunctions related to specific local authority land. These were future-facing - made against persons unknown that might, at an unknown date in the future, set up unauthorised encampments on that land.

Some of the injunctions were of fixed duration, whereas others contained a variety of provisions concerning review or liberty to apply to vary or discharge the injunction.

From around mid-2020, the local authorities made applications to extend or vary the injunctions. The High Court conducted an overarching review hearing of applications made by 16 local authorities, inviting submissions from traveller organisations and liaison groups, and ruled that final injunctions could not be issued against newcomers – only short-term, interim ones.

An appeal was brought by 10 local authorities and councils, and persons unknown, to challenge the decision. The Court of Appeal held that the High Court decision was wrong, and that the court had jurisdiction to grant final injunctions that prevented newcomers from occupying and trespassing on land.

The bodies representing the interests of Gypsies and Travellers appealed.

Interveners included Friends of the Earth and Liberty on one side, with HS2 Ltd and the Secretary of State for Transport on the other, due to the wider context implications as these injunctions are also often used against protestors.

Supreme Court decision

While the Supreme Court agreed with the Court of Appeal and unanimously dismissed the appeal, finding in favour of the local authorities, it did so on different grounds.

The Court of Appeal, reviewing the caselaw in detail, had made its decision based on the premise that a newcomer that knowingly violated the terms of an injunction automatically became a party to that injunction by their act. However, when the Supreme Court considered this point, they described it as “a solution looking for a problem”. 

Instead, the assumption should be that people will obey the law and the terms of the injunction, which embraces the whole of humanity as ‘persons unknown’.

It was considered too absolutist to say that a claimant can never sue persons unknown unless they are identifiable, because many persons to whom the injunction might apply, but who comply with its terms, will never be identifiable.

The injunction, therefore, binds all those that could breach its terms – not only those who do.

On that basis, anyone affected by the order can also apply to have it varied or discharged, without first needing to be in breach.

Importance of equity

The judgment lays emphasis on the equitable nature of the power to grant injunctions – and that equity is an evolving area of law with new kinds of injunctions being created in new circumstances - for example, Mareva freezing orders, Norwich Pharmacal third party disclosure orders.

The variety of case law cited in the judgment shows why the objections that had been raised to the grant of newcomer injunctions go to matters of established principle, rather than being concerned solely with the power of the court.

It is widely anticipated that similarly, the applicable principles and safeguards that apply to newcomer injunctions will evolve over time – particularly with the advent of the internet, where wrongdoers can hide behind a veil of anonymity.

Because a newcomer injunction is new, the Supreme Court went back to first principles to consider its distinguishing features: they are made against persons that are truly unknowable, they are made on a without notice basis, and against persons that are unlikely to have any right or liberty to do the act which is prohibited by the order – so, there is unlikely to be any real dispute to resolve.

Instead, equity will act to step in where the available common law remedies are inadequate to protect or enforce the claimant’s rights.

When can a “newcomer” injunction be made?

The Supreme Court emphasised that the granting of a newcomer injunction should only be made subject to procedural safeguards.

It is, therefore, likely that newcomer injunctions will only be justified where:

1. There is a compelling need for the protection of civil rights or to enforce public law, which is not adequately met by any of the other measures available. There was limited discussion as to whether byelaws or other measures might be suitable, perhaps on a case by case basis.
2. There is procedural protection for the rights of those affected by the injunction, including an obligation to take all reasonable steps to draw both the application and the order to their attention and to include generous permission to apply for the injunction to be varied or discharged. This would be relevant to those that might breach the injunction, and also to those that wish to protect newcomers’ rights, to oppose the injunction in the first place.
3. The applicant has complied with the most stringent form of disclosure duty, including presenting to the court everything that the targeted newcomers might have raised in opposition.
4. The injunction is constrained both in duration and location, as well as defining the actual or intended respondents, and the prohibited acts, as precisely as possible.
5. It is just and convenient that the injunction be granted, on the particular facts of the case.

Implications

The judgment is an important analysis into the evolution of equitable remedies, and the development of injunctions generally.

On a practical level, it is important to remember that notwithstanding this appeal went in favour of the landowners, it will not always be appropriate to grant newcomer injunctions.

There may be situations, on a case by case basis, where other measures are more suitable or no less convenient.

Another key takeaway is the need for consultation and co-operation from local authorities and the traveller community to facilitate and encourage a constructive approach. This may have more of a bearing on whether courts are minded to grant injunctions in the future.

There will clearly be issues where an application for an injunction is broadly or ambiguously drafted. It is also crucial to have in the order liberty for anyone affected to apply to court to have the injunction varied or discharged, and the courts may be more mindful of this requirement given the without notice basis for making the order.