London Borough of Barking and Dagenham v Persons Unknown

The court may grant final injunctions against unidentified persons who may subsequently occupy or trespass on land. A newcomer who knowingly breaches a persons unknown injunction becomes a party to the proceedings and may challenge the order. There is no jurisdictional distinction between interim and final injunctions in this context. Both require procedural safeguards, including adequate description, notice and an opportunity to be heard.

The same procedural limitations apply to injunctions restraining apprehended torts and breaches of planning control. Persons unknown injunctions require continuing supervision and should normally provide for periodic review. Injunctions against the world are exceptional, but the court should preserve the breadth of its statutory jurisdiction by leaving open the categories in which such relief may be proportionate and justified.

Local authorities had obtained interim or final injunctions against persons unknown to prevent unauthorised encampments on their land. Some orders expressly provided for review, and most permitted affected persons to apply for variation or discharge. The claims had been brought under the Part 8 procedure.

Following developments in the authorities, Nicklin J brought together proceedings involving 38 local authorities for consideration of the continuing validity of their injunctions. In [2021] EWHC 1201 (QB), he concluded that final injunctions could bind only defendants identified and given an opportunity to contest the order before its grant. He discharged injunctions and prescribed safeguards for future proceedings.

Fifteen local authorities participated in the appeals. Organisations representing Gypsies and Travellers, High Speed Two (HS2) Limited and Basildon Borough Council intervened. The principal issue was whether final injunctions could bind newcomers who were unknown and unidentified when the orders were made. Further issues concerned the procedure for reconsidering existing orders, the relationship between the statutory injunction jurisdictions, and the permissible scope of injunctions against the world.

1. The appeal was allowed unanimously. The judge had wrongly concluded that final injunctions against unauthorised encampment could not bind newcomers. There was no jurisdictional distinction between interim and final injunctions for this purpose.

2. South Cambridgeshire District Council v Gammell established that a newcomer who knowingly violated a persons unknown injunction became a party without a separate joinder application. Its reasoning applied to interim and final orders. Ineos Upstream Ltd v Persons Unknown adopted the same approach in protester cases. Cameron v Liverpool Victoria Insurance Co Ltd concerned an unidentifiable driver and did not decide the position of newcomers. Its requirement of notice and an opportunity to be heard was compatible with the newcomer mechanism.

3. The contrary reasoning at paragraphs 89–92 of Canada Goose UK Retail Ltd v Persons Unknown was unnecessary to that decision and misunderstood the earlier authorities. Even if it formed part of the essential reasoning, the court could decline to follow it under the exceptions in Young v Bristol Aeroplane Co Ltd. It conflicted with binding Court of Appeal authority and had been given without proper regard to that authority. The court declined to distinguish protester cases from unauthorised encampment cases involving trespass or nuisance.

4. A final persons unknown injunction remained subject to supervision and enforcement. The proceedings continued until the injunction was discharged. An affected non-party could seek variation or discharge under CPR 40.9. Such injunctions should normally have a fixed point for review, and periodic review was good practice even for final orders. The safeguards governing description, service, clarity and proportionate relief remained applicable. Default judgment was unavailable in Part 8 proceedings.

5. The guidance on engagement with travelling communities, appropriate welfare and equality impact assessments, and respect for their culture was endorsed. However, Convention rights belonged to individuals. Prospective newcomers could rely on private and family life interests in pursuing a nomadic lifestyle, rather than a home already established on the relevant land. Those interests required abstract consideration when relief against persons unknown was sought. An individual assessment of interference and proportionality became possible when an affected person appeared to resist or challenge an order.

6. Section 37 of the Senior Courts Act 1981 and section 187B of the Town and Country Planning Act 1990 imposed the same procedural limitations. Defendants required sufficiently clear descriptions to permit service, subject to appropriate alternative service or dispensation. Injunctions against the world were exceptional, but their permissible categories should remain open.

7. The procedure for calling in existing final orders was unusual. No further action was required because the authorities had not objected, most orders provided for review or permission to apply, and newcomers could challenge them. Further submissions on consequential orders were invited; their determination in the High Court might be appropriate.

• Court of Appeal: In [2022] EWCA Civ 13 , unanimously allowed the appeal and rejected the conclusion that final injunctions could not bind newcomers. Consequential matters remained for further submissions, potentially in the High Court.
• High Court, Queen’s Bench Division: Nicklin J brought together existing injunction proceedings and, following a hearing in January 2021, delivered [2021] EWHC 1201 (QB) on 12 May 2021. He concluded that final injunctions could not capture newcomers, discharged injunctions and gave consequential directions.