London Borough of Barking and Dagenham v Persons Unknown (Barking)

The Court of Appeal held that it was wrong to treat final injunctions against unidentified "newcomers" as impermissible in all cases. The court explained that established authorities (notably South Cambridgeshire v. Gammell and Ineos) demonstrate that persons unknown injunctions may bind persons who later make themselves parties by knowingly breaching the injunction. The court criticised parts of Canada Goose ([2020] EWCA Civ 202) that suggested a blanket rule preventing final orders against newcomers, and said the Supreme Court decision in Cameron ([2019] UKSC 6) had been misunderstood when so applied.

The court confirmed that the Senior Courts Act 1981, section 37, and section 187B of the Town and Country Planning Act 1990 are subject to the same procedural safeguards when persons unknown are sought to be bound, and endorsed the need for careful procedural protections (clear description, limited geographic/temporal scope, welfare and proportionality considerations, review mechanisms and appropriate service or alternative service). The appeal was allowed.

This appeal arose from multiple local authority claims seeking injunctions to prevent unauthorised encampments. The primary issue was whether a court may grant final injunctions preventing "persons unknown" (specifically newcomers not identifiable at the date of the order) from trespassing and occupying local authority land. The High Court (Nicklin J) had concluded that final injunctions cannot be granted so as to bind newcomers and had exercised a court-initiated procedure calling in many existing orders for reconsideration.

Nature of the application: local authorities had sought interim and final injunctive relief (under section 37 of the Senior Courts Act 1981 and in many cases under section 187B of the Town and Country Planning Act 1990) against persons unknown to prevent trespass and unauthorised encampments.

Procedural posture: the cases came from a rolled-up hearing after a court order directed claimants to review existing orders in light of recent authority; the Court of Appeal allowed the appeal from Nicklin J ([2021] EWHC 1201 (QB)).

Issues framed by the court:

• whether the court can grant final injunctions binding persons unknown who are not parties at the date of the final order (newcomers);
• whether the procedure adopted by the High Court to call in final orders was proper; and
• whether section 187B provides a different regime from the general injunctive power in section 37.

Reasoning and outcome: the Court of Appeal concluded that the judge had erred in treating final injunctions against newcomers as universally impermissible. The court relied on Bloomsbury, Hampshire Waste, Gammell and Ineos for the proposition that persons unknown may be the subject of injunctions and that individuals may become parties by knowingly breaching such orders. It found that paragraphs [89]-[92] of Canada Goose went too far in creating a categorical bar, and that Cameron had been misunderstood when used to support that bar. The court confirmed that section 37 and section 187B impose the same procedural limitations and safeguards (clear description to permit service, use of alternative service where appropriate, proportionality and human rights consideration, time and geographic limits, and review mechanisms). The Court of Appeal allowed the appeal, holding that final injunctions can, in principle and subject to safeguards, prevent newcomers from occupying or trespassing on land.

Appeal allowed. The court concluded that the judge was wrong to hold that final injunctions cannot in principle bind unidentified newcomers. The Court of Appeal held that established authorities (notably Gammell and Ineos) show that persons unknown injunctions can be valid and that individuals may become parties by knowingly breaching such orders; it criticised parts of Canada Goose that suggested a categorical prohibition and found that section 37 and section 187B are subject to the same procedural safeguards. The High Court’s unorthodox procedure calling in final orders was unusual but did not cause prejudice in the circumstances.

Appeal to the Court of Appeal from the High Court of Justice, Queen's Bench Division (Nicklin J) [2021] EWHC 1201 (QB). The Court of Appeal gave judgment on 13 January 2022 ([2022] EWCA Civ 13).