SUPREME COURT FINDS PRINCIPLED BASIS FOR NEW CATEGORY OFINJUNCTION
Wolverhampton City Council and others (Respondents) vLondon Gypsies and Travellers and others (Appellants) [2023] UKSC 47.
The Supreme Court dismissed an appeal against the granting of injunctions sought by local authorities against ‘persons unknown’ to prevent unauthorised encampments by Gypsies and Travellers. The court held that, while this was a wholly new type of injunction, it accorded with general equitable principles whose application was not set in stone. The Court proceeded to set out considerations relevant to the granting of this type of relief on a case-by-case basis.
The judgment was given on 28 November 2023 by Lord Reed, Lord Briggs and Lord Kitchen, with whom the rest of the court agreed. The case concerned injunctions obtained by local authorities to prevent unauthorised encampments by Gypsies and Travellers. Since it was not possible to know whow ould camp at a particular site in the future, the defendants were not identifiable as parties to the proceedings. The question for the court was whether, as a matter of legal principle, an injunction could properly be granted against such persons, referred to as “newcomers”.
At first instance Nicklin J dealt with applications to extend or vary injunctions by 16 local authorities. Applying Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802(“Canada Goose”), he concluded that injunctions were avail able against newcomers on an interim basis, but final orders could only bind identified defendants. The Court of Appeal overturned the judge’s decision, relying on the reasoning in South Cambridgeshire District Council v Gammell; Bromley London Borough Council v Maughan [2005] EWCA Civ 1429; [2006] 1 WLR 658(“Gammell”), where it was held that persons became parties in the event that they breached the injunction.
The judgment considers the following legal background: the jurisdiction to grant injunctions [16 – 22]; injunctions against non-parties [23 - 42]; injunctions in the absence of a cause of action [43– 49]; and, the commencement and service of proceeding against unidentified defendants [50 – 56]. There follows a review of the development of newcomer injunctions since Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205 (Ch); [2003] 1 WLR 1633 [57 – 107].
ANALYSIS
The court recognised that the difficultly faced by the courts below in justifying newcomer injunctions had arisen from treating them as conventional inter partes injunctions, subject to the usual requirements as to service. This had led to approaches which were either illogical (Gammell) or which took an unrealistic view of proceedings to fit existing categories (Canada Goose). The correct approach was to treat newcomer injunctions as in substance always without notice, neither interim nor final and potentially effective against all the world (contra mundum).
The court found that the jurisdiction (or power) to grant injunctions contra mundum was confirmed by Venables v News GroupNewspapers Ltd [2001] Fam 430 (“Venables”) and similar cases which followed. However, those cases – concerned with preventing serious breaches of Convention rights – did not supply a principled basis for granting newcomer injunctions, which the court decided were “a wholly new type of injunction with no closely related ancestor from which it might be described as evolutionary offspring …” [144].
The court’s analysis therefore turned to first principles,finding five of particular relevance: (1) equity intervenes where it perceivesavailable common law remedies are inadequate to protect or enforce theclaimant’s rights; (2) equity looks to substance rather than form; (3) equityis highly flexible (and this flexibility is not to be undermined bycategorisation); (4) there is no limiting rule apart from justice andconvenience which equity has held sacrosanct over time; and, (5) equity acts inpersonam rather than in rem.
While (1) – (4) favoured the granting of newcomerinjunctions, the court considered that (5) might not and was expressed by theappellants’ submission that such an injunction would operate more like aspecies of local law than an in personam remedy between civil litigants. Neverthelessthe court, following further consideration of existing types of order whoseeffect extends beyond named defendants [155 – 165], concluded that newcomerinjunctions were capable of justification as a novel exercise of equitablediscretionary power, but likely only if [paraphrasing 167]:
(i) There is a compelling need to protect rights/achievea statutory objective in the locality which is not adequately met by any othermeasures.
(ii) There is procedural protection for the rights ofaffected newcomers, including Convention rights.
(iii) Applicant local authorities comply with the moststringent form of disclosure duty.
(iv) The injunctions are constrained by both territorial and temporal limitations so their effect is limited to what is justified by (i)above.
(v) It is just and convenient that an injunction be granted on the particular facts.
The court returned [at 173] to procedural fairness. The court observed that this issue applied to all forms of ‘without notice’ applications, in which the importance of the relevant objective was judged to outweigh the general requirement that proceedings should be brought to the notice of affected parties before any order is made against them. The court held the correct balance could be achieved through informal notice and liberty to apply provisions. Fundamental to the court’s reasoning was the view that a newcomer injunction – as neither interim nor final – was not decisive of legal rights and so an applicant to vary or discharge would be at liberty to advance any reasons which could have been advanced in opposition when the injunction was first made.
The remainder of the judgment [187 – 236] gives further consideration to the principles and safeguards affecting applications for newcomer injunctions against Gypsies and Travellers. Since Local Authorities (unlike other applicants who may in future seek newcomer injunctions) have housing responsibilities towards Gypsies and Travellers, in order to establish the “compelling justification” required for the order sought to be made, a Local Authority applicant will need to address: their use of the power to provide sites under section 24 of the Caravan Sites and Control of Development Act 1960;their assessment of relevant need under section 8(3) of the Housing Act; local planning policy, in particular whether the needs of Gypsies and Travellers area ddressed in accordance with national guidance; their provision of transit sites (the lack of which “may itself be a sufficient reason for refusing a newcomer injunction” [202]); and, their engagement and co-operation with Gypsy and Traveller communities in resolving issues.
Applicants will also need to address the efficacy of other types of intervention to show that an injunction is necessary. These include: Public Space Protection Orders; relevant powers conferred on police and local authorities by the Criminal Justice and Public Order Act 1994; and, the power to make byelaws under eg, section 235(1) of the Local Government Act 1972, section15 of the Open Spaces Act 1906, and sections 164 and 183 of the Public Health Act 1875. The court observed that byelaws had received very little attention from local authorities in the proceedings and careful attention should be paid to them in future applications.
The judgment sets out detailed requirements around disclosure [219], the content of the order (geographical and temporal limits [225] and the most generous provision for liberty to apply [232])and informal notice [226 – 231], aimed at ensuring only proportionate interference with (or safeguarding) the substantive and procedural rights of those affected. The court expressed considerable doubt that it would ever be justifiable to grant a newcomer injunction that extended borough-wide or for significantly more than a year. Applicants should take all reasonable steps to advertise applications in advance and give effective notice of orders made, making use of online and offline channels and direct communications with Gypsy and Traveller communities and representatives groups.
The court indicated that costs protection and/or across-undertaking in damages may be justified in appropriate cases, but left these issues for another day [233 – 234]. It was acknowledged that public bodies are not generally expected to give cross-undertakings.
COMMENT
Newcomer injunctions operate as an effective deterrent because their breach is dealt with by proceedings for contempt of court, in which a maximum of two years’ imprisonment can be imposed under section 14 of the Contempt of Court Act 1981. ‘Notice’ of the order breached is one ingredient of liability for contempt, treated as equivalent to ‘service’ and vice versa. It is unclear how courts will interpret this requirement in newcomer cases brought and maintained without formal notice in line with this judgment.
The judgment usefully demonstrates the width and flexibility of the equitable jurisdiction to issue injunctions: The court is empowered to disregard convention and procedural formalities where they would otherwise prevent the implementation of an effective and proportionate remedy (subject to the constraints of precedent and the rules of the court). Local authorities will welcome the court’s approval of newcomer injunctions a s a matter of principle. However, the conditions imposed by the decision set a very high bar. In particular, what will need to be done to satisfy the requirement for full and fair disclosure will be onerous (as to which see [167(iii)] and [219]and PJSC Commercial Bank Privatbank v Kolomoisky [2019] EWCA Civ 1708,[2020] 2 W.L.R. 993, [250] and Brink's Mat Ltd v Elcombe [1988] 1 WLR1350, 1356–1357). There will need to be careful consideration by local authorities of their obligations and a range of powers before seeking injunctive relief – effectively as a last resort.
It has been left to the lower courts to develop conditions and safeguards appropriate to injunctions sought against newcomers in different circumstances [235]. Anon-local authority applicant seeking a newcomer injunction will not, of course, have any statutory housing duty towards newcomers, so the conditions arising from that factor will not arise in other cases. Other than that, however, it is hard to see how the other conditions will necessarily be that much less stringent in other newcomer cases, given that the real novelty of the decision is in the “newcomer” aspect.
