London Borough of Barking and Dagenham v Persons Unknown

A final injunction may, where it is just and convenient, restrain persons unknown who will become newcomers by committing a threatened trespass or nuisance. There is no jurisdictional distinction between interim and final injunctions for this purpose. A newcomer who knowingly breaches such an injunction becomes a party and must have an effective opportunity to challenge it.

The description, notice and service safeguards applicable to injunctions against persons unknown apply equally under Senior Courts Act 1981, section 37, and Town and Country Planning Act 1990, section 187B. Orders should normally be time limited and kept under review. The court should not pre-emptively close the exceptional categories in which an injunction against the world may be appropriate.

Fifteen local authorities appealed from a judgment of Nicklin J, [2021] EWHC 1201 (QB), which had discharged or reconsidered injunctions concerning unauthorised encampments. The claims, begun under CPR Part 8, sought interim or final relief against persons unknown who might in future occupy local-authority land without permission.

The judge held that final injunctions could not bind newcomers who were unidentified when the order was made. He treated Canada Goose UK Retail Ltd v Persons Unknown and another as requiring that result. The appeals raised whether final injunctions could restrain such newcomers, the propriety of calling in existing final orders for reconsideration, and the relationship between section 37 and section 187B.

1. Appeals allowed. The court held that Nicklin J was wrong to conclude that a final injunction could not restrain newcomers from trespassing on or occupying local-authority land. There was no jurisdictional distinction between interim and final persons-unknown injunctions. A person who knowingly breached the order became both a person to whom it was addressed and a party to the proceedings, with an opportunity to apply to set it aside or vary it.

2. The court followed the essential reasoning in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Ineos Upstream Ltd v Persons Unknown and others [2019] EWCA Civ 515. It held that paragraphs 89–92 of Canada Goose UK Retail Ltd v Persons Unknown and another [2020] EWCA Civ 202 were not necessary to that decision, misunderstood Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6, and conflicted with binding earlier authority. Under Young v Bristol Aeroplane Co Ltd [1944] KB 718, the court could refuse to follow them.

3. Section 37 and section 187B imposed the same procedural safeguards. Persons unknown must be described sufficiently clearly for service, subject to the court’s powers concerning alternative service or dispensing with service. The ordinary safeguards for injunctions, including clear terms, notice, proportionality and review, remained applicable. Periodic review, commonly after a year, was good practice; Part 8 claims could not result in default judgment.

4. The court rejected a collective formulation of Convention rights. Article 8 rights were individual. A newcomer had no Article 8 home right in land that they did not own, but could raise an individual private and family life claim connected with a nomadic lifestyle when challenging an order. The court must then assess proportionality alongside the landowner’s rights and other relevant considerations.

5. The High Court’s own-motion procedure of calling in final orders after legal developments was highly unusual. No further action was required because the authorities had not objected, most orders allowed review or an application to vary, and the process had clarified the law. The court also declined to limit in advance the types of exceptional case in which section 37 might justify an injunction against the world.

• Court of Appeal (Civil Division): Appeals allowed: [2022] EWCA Civ 13.
• High Court, Queen’s Bench Division: Nicklin J held that final injunctions could not bind unidentified newcomers and made consequential orders concerning existing injunctions: [2021] EWHC 1201 (QB).