Supreme Court confirms availability of courts to grant “newcomer” injunctions against unknown persons

In the Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47 judgment handed down on 29 November 2023, the Supreme Court unanimously confirmed that the courts have the power to grant “newcomer” injunctions against unknown persons. As made clear in the judgment itself, this brand-new type of injunction, with the potential to be ordered against anyone in the world, will be of significance in many contexts beyond the immediate facts of the dispute before the court which concerned trespass by gypsies and travellers: for example, the prevention of cyber-crime, industrial and environmental protest disputes, breaches of confidence and IP rights and in preventing some of the unlawful activity connected to social media and other on-line activities.

Background

The Supreme Court appeal was concerned with several conjoined cases in which injunctions were sought by local authorities to prevent unauthorised encampments by Gypsies and Travellers. As summarised in the judgment:

“Since the members of a group of Gypsies or Travellers who might in future camp in a particular place cannot generally be identified in advance, few if any of the defendants to the proceedings were identifiable at the time when the injunctions were sought and granted. Instead, the defendants were described in the claim forms as “persons unknown”, and the injunctions similarly enjoined “persons unknown”.”

Injunctions were granted by the courts but in many cases, at the time the injunctions were granted the “persons unknown” had not yet committed or threatened to commit any unlawful activity. Generally, the Gypsies and Travellers were not present at the hearings and so there was no-one to make representations on their behalf. Further, the injunctions were granted for lengthy periods of time. Applications were made to extend these injunctions, and it was at one of these hearings that a Judge decided that these ‘newcomer’ injunctions should be reviewed. On review and having given permission for various groups to make submissions on behalf of the Gypsy and Traveller communities, the Judge held he did have the power to make this type of injunction on an interim basis, but that final injunctions could only be granted against persons who had been identified and had an opportunity to contest the final order sought. The Court of Appeal held the Judge was wrong to hold that the court could not grant final injunctions against persons unknown and unidentifiable at the date of the order from occupying and trespassing on land. The appeal to the Supreme Court was against that decision.

Newcomer injunctions

The Supreme Court found that “newcomer” injunctions were a completely new type of injunction with no closely related ancestor. They were made against persons who were not identifiable at the time the injunction was granted and who at that time had not infringed, or threatened to infringe, any right for which protection was sought but might do so at a later date. As they were made against persons who were truly unknowable at the time the injunction was granted, they potentially applied to anyone in the world. The injunction in its operation upon newcomers was neither interim nor final. Rather, against newcomers, it was a without notice injunction which at the time it was made operated against a person who had not been served with the application and who may not at that stage be a defendant in the proceedings in which the injunction was sought.

The effect of the newcomer injunction was to bind anyone with notice of it and so any person who knowingly breached the injunction was liable to be held in contempt whether or not they had been served with proceedings. Anyone affected by it could apply to have it varied or discharged and could apply to be made a defendant.

The Supreme Court did not consider the grant of newcomer injunctions to be constitutionally improper. The power to grant injunctions was equitable in origin and had to be exercised in accordance with principle and any restrictions established by judicial precedent. The Court considered that newcomer injunctions could be justified as it considered that there were no other viable options for safeguarding a landowner's rights when faced with trespass or occupation by unknown persons. Without the ability to obtain a newcomer injunction, a landowner or local authority could find themselves in an endless cycle of applying for temporary injunctions, leading to never-ending litigation. Claimants shared a common experience in that, due to the time constraints of going to court, by the time an injunction was ordered, the original traveller group against who it was made had left the site and a new group had taken their place. As a result, the initial dispute had been resolved but the problem remained. A newcomer injunction allowed the local authority or landowner to enforce their legal rights and was a valuable and proportionate remedy in appropriate cases.

Limits on the grant of newcomer injunctions

However, the Supreme Court considered that newcomer injunctions could only be justified if certain criteria and safeguards were put in place which it identified as follows:

1. The court must be satisfied by detailed evidence that there is a compelling justification for the order sought, and that the claimant has demonstrated that there are no other remedies which can protect its civil rights or enforce public law.
2. Procedural safeguards must be built into both the application and the court order as those likely to be affected by the injunction will not have notice of the application.
3. The injunction must be defined as precisely as possible and must include a liberty to apply provision and a temporal and geographical limit.
4. The injunction must also be advertised as widely as possible, so that those who may be affected by it have the chance, where possible, to make representations about its imposition. And once made, the injunction must be displayed as widely as possible so that once the newcomer becomes aware of it, they are able to apply to the court to have it varied or set aside depending on the circumstances.
5. The claimant must comply with the duty of full and frank disclosure as those likely to be affected by it will not be present at the hearing which considers whether to grant the injunction.
6. Finally, the court must be satisfied that, on the facts of the case, it is just and convenient to grant the injunction.

The wider significance of the newcomer Injunction

The decision will be welcomed by landowners and public authorities looking for a more efficient way to protect their rights and comply with their duties. It may also have wider significance for other situations where the anonymity of wrongdoers operating online or offline risks giving them immunity from the law. In acknowledging the impact the decision would have on offline risks, including the law relating to protests, the Supreme Court heard submissions from Friends of the Earth, Liberty, the Secretary of State for Transport and HS2 Ltd. In terms of online risks, the Supreme Court commented that “if injunctions are available only against identifiable individuals, then the anonymity of wrongdoers operating on-line risks confers [sic] upon them an immunity from the operation of the law” as violations of private and public rights can occur behind a veil of anonymity. The Supreme Court’s recognition of this new type of injunction could provide businesses who are victims of cyber-crime, online frauds, and other anonymous unlawful activities with an additional weapon against the perpetrators. It will be interesting to see whether this new form of injunction remains confined to cases of trespass on land or whether it will be deployed increasingly to address unlawful activities in the digital world.

With thanks to Nick Gorensweigh for his help in putting this article together.