The London Borough of Bromley v Persons Unknown (Rev 3)

A final quia timet injunction against persons unknown requires a real and imminent risk of tortious conduct and a strong probability of irreparable harm. Its terms must correspond to the threatened tort, permit effective notice, remain clear, and have proper geographical and temporal limits.

Where an injunction restricts the nomadic life of Gypsies and Travellers, the court must independently assess proportionality. Relevant matters include alternative sites, cumulative restrictions imposed by neighbouring authorities, engagement and welfare assessments, equality duties, the conduct to be prevented, and the injunction’s breadth and duration. A boroughwide, five-year prohibition on entry or encampment is inherently problematic and potentially discriminatory. Such relief should be a last resort.

The local authority obtained an interim injunction against persons unknown covering 171 public sites. It sought a final injunction prohibiting unauthorised entry and residential occupation throughout nearly all accessible public spaces in the borough. The order was directed principally at Gypsies and Travellers, although that community had no authorised transit site within Greater London.

A deputy High Court judge refused the entry and encampment provisions, while granting relief concerning fly-tipping and waste: [2019] EWHC 1675 (QB). She found that the requirements for quia timet relief were established but that the proposed boroughwide, five-year injunction was disproportionate.

The local authority appealed on proportionality, irreparable harm, cumulative effect, compliance with the public sector equality duty and permitted development rights. The wider issue was how courts and local authorities should approach injunctions against persons unknown which restrict the nomadic life of Gypsies and Travellers.

1. Appeal dismissed. The judge considered all relevant proportionality factors, considered nothing irrelevant and reached a conclusion within the proper ambit of her discretion. No error of principle justified appellate intervention.

2. The six requirements formulated in Joseph Boyd v Ineos Upstream Ltd [2019] EWCA Civ 515 provide the applicable framework for injunctions against persons unknown. Such injunctions demand particular caution because absent defendants cannot ordinarily test the claim. The claimant must also establish a strong probability of irreparable harm. That means harm which cannot be reversed or restrained by an immediate injunction and cannot be adequately compensated by damages.

3. The court must independently determine whether injunctive relief affecting Gypsies and Travellers is proportionate. Their vulnerable and protected status, and the integral importance of nomadism to their ethnic identity, carry substantial weight under article 8 of the Convention and the Equality Act 2010.

4. The proposed order properly fell to be characterised as a de facto boroughwide prohibition. Cemeteries, highways and private land were not realistic alternatives. The absence of substantial criminal conduct beyond fly-tipping was relevant because the order principally targeted entry and occupation. The lack of any transit site or proposal for one weighed very strongly against relief.

5. The cumulative effect of similar injunctions obtained by neighbouring authorities was relevant. Each order reduces the available options for other authorities and for the affected community. A submission that Travellers can move elsewhere or occupy private land is insufficient.

6. An equality impact assessment is not an inflexible statutory requirement. Its substance, however, is important evidence of compliance with the public sector equality duty and of a proportionate approach. Proper engagement, current equality assessment and welfare assessments, especially concerning children, are good practice. Failure to demonstrate them may result in refusal.

7. The local authority bore responsibility for proposing a suitably limited order. The judge did not have to design a lesser injunction which the authority had neither formulated nor accepted. The five-year duration was unduly long. The authority had also failed satisfactorily to explain how the order would preserve relevant permitted development rights.

8. Boroughwide injunctions are inherently problematic and more likely to be refused. An application combining boroughwide scope with a five-year duration may, without more, be fatally disproportionate. Injunctions directed only at entry and encampment require stronger justification than orders supported by credible evidence of criminality or serious health and safety risks. Such relief should be sought only after the authority concludes that no other solution exists.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The refusal of the entry and encampment injunction was upheld: [2020] EWCA Civ 12.
2. High Court, Queen’s Bench Division: A deputy High Court judge refused a final injunction prohibiting entry and encampment across 171 public sites, but granted relief concerning fly-tipping and waste: [2019] EWHC 1675 (QB).
3. High Court, Queen’s Bench Division: An interim injunction covering the 171 sites had previously been granted without notice on 15 August 2018.