Wolverhampton City Council and others v London Gypsies and Travellers and others

The High Court may grant a newcomer injunction against people who are neither parties nor identifiable when the order is made. Such an order operates without notice and binds anyone who knows of it while it remains in force. Its validity does not depend on a person becoming a defendant by breaching it.

The remedy is exceptional. The applicant must demonstrate a compelling need which other remedies cannot adequately meet. The court must require full disclosure, precise and comprehensible terms, proportionate geographical and temporal limits, advance publicity where practicable, effective notice of the order and generous liberty to seek variation or discharge. The court must ultimately be satisfied that the order is just and convenient. In Traveller cases, the availability of lawful stopping places and statutory alternatives is material.

Between 2015 and 2020, numerous local authorities obtained injunctions intended to prevent unauthorised encampments by Gypsies and Travellers. The defendants were described as “persons unknown”. Many orders purported to restrain future occupiers who were not identifiable, had not threatened any wrong and were not parties when the orders were made.

In Barking and Dagenham London Borough Council v Persons Unknown [2021] EWHC 1201 (QB); [2022] JPL 43, Nicklin J held that interim injunctions could be granted against unknown persons but final injunctions could bind only identified parties who had had an opportunity to contest them. The Court of Appeal allowed the local authorities’ appeals: [2022] EWCA Civ 13; [2023] QB 295.

The representative organisations for Gypsies and Travellers appealed. The central question was whether the court could grant an interim or final injunction binding future, unidentified newcomers who were not parties and against whom no cause of action had yet arisen, and, if so, what principles and safeguards governed that power.

Appeal dismissed unanimously. Lord Reed, Lord Briggs and Lord Kitchin delivered a joint judgment, with which Lord Hodge and Lord Lloyd-Jones agreed.

1. The High Court has power under section 37 of the Senior Courts Act 1981 to grant an injunction against newcomers who are neither parties nor identifiable when the order is made. The distinction is between the existence of the equitable power and the principles governing its exercise. Those principles evolve as circumstances change.

2. A newcomer injunction is a novel equitable remedy. As against newcomers, it is necessarily made without notice, whether formally interim or final. It operates contra mundum and binds anyone who knows of it while it remains in force. It does not depend on the paradoxical reasoning that a newcomer becomes bound, or becomes a defendant, only by breaching the order.

3. The absence of an existing cause of action and the fact that the affected person is not yet a party create no absolute bar. Equity may fashion an effective remedy where conventional remedies are inadequate. It looks to substance rather than form and retains flexibility to respond to new circumstances.

4. The applicant must establish a compelling need for protection of civil rights or enforcement of public law which cannot adequately be met by other measures. It must provide full and detailed evidence of a real and imminent threat, a strong probability of unlawful conduct and resulting real harm. A local authority must consider lawful stopping places, dialogue with affected communities and available statutory or byelaw powers.

5. Procedural safeguards must compensate for the order being made without notice. The applicant owes the most stringent duty of disclosure, extending after reasonable research to matters which affected newcomers might raise. The intended respondents must be identified as precisely as possible. The prohibited conduct must be stated clearly, in everyday language, and the order must extend no further than necessary.

6. Reasonable steps must be taken to advertise the intended application and to notify affected persons and representative bodies of any order. Every order must provide generous liberty to apply for variation or discharge without requiring a change of circumstances. Traveller injunctions require strict territorial and temporal limits, periodic review and, ordinarily, expiry after no more than one year unless renewed.

7. The inability to undertake an individual proportionality assessment for every unknown Traveller before making the order is not an absolute objection. Individual circumstances may be considered through liberty to apply. The overriding question remains whether the particular order is just, convenient and proportionate.

The Court of Appeal’s orders were therefore affirmed, although for substantially different reasons. The existing injunctions required appropriate and early review in light of the safeguards identified by the Supreme Court.

1. United Kingdom Supreme Court: In Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47, the court unanimously dismissed the appeal. It affirmed the Court of Appeal’s orders on substantially different reasoning and required appropriate review of the existing injunctions.
2. Court of Appeal: In Barking and Dagenham London Borough Council v Persons Unknown [2022] EWCA Civ 13; [2023] QB 295, the court allowed the local authorities’ appeals and held that final injunctions could prevent persons unidentified when the order was made from occupying and trespassing on land.
3. High Court: In Barking and Dagenham London Borough Council v Persons Unknown [2021] EWHC 1201 (QB); [2022] JPL 43, Nicklin J held that interim injunctions could be granted against persons unknown, but discharged final orders so far as they purported to bind unidentified non-parties.