Wolverhampton City Council v. London Gypsies and Travellers

The Supreme Court held that the High Court has power under section 37 of the Senior Courts Act 1981 to grant injunctions which bind “newcomers” (persons unknown and unidentifiable at the date of the order) in suitable cases. Such newcomer injunctions operate effectively contra mundum in so far as they bind anyone who has notice of them while they remain in force. The court rejected the proposition that final newcomer injunctions are never permissible (as advanced in Canada Goose) and also rejected the simplistic notion that a newcomer only becomes a defendant by breaching the order (the so-called Gammell solution).

The court emphasised that newcomer injunctions are an equitable, discretionary remedy and may be warranted where common-law or statutory remedies are inadequate (for example in repeated, short-lived trespasses or breaches of planning control). But they must be granted only when there is a compelling justification and subject to rigorous procedural and substantive safeguards: close identification (so far as possible) of the persons or conduct restrained, clarity of prohibited acts, strict territorial and temporal limits, full disclosure by the applicant, effective steps to publicise the application and order, and generous liberty to apply to vary or discharge the order (including provision for representation or intervention by bodies with an interest and careful periodic review).

Background and parties: The appeal arose from a series of applications by local authorities for injunctions to prevent unauthorised encampments by Gypsies and Travellers. Claim forms were often issued under CPR Part 8 against “persons unknown” and orders were made, typically on without-notice applications, restraining occupation or other conduct on identified or borough-wide land. The appellants were bodies representing Gypsies and Travellers; the respondents were multiple local authorities. The proceedings below included judgments of Nicklin J ([2021] EWHC 1201 (QB)) and the Court of Appeal ([2022] EWCA Civ 13). The Court of Appeal allowed some claimant local authorities; this appeal concerned the correctness of that approach.

Nature of relief sought: Local authorities sought injunctions (interim and in some cases expressed as final) prohibiting unauthorised occupation of land, often framed as relief against “persons unknown”, and relying in many cases on statutory powers (including section 187B Town and Country Planning Act 1990 and section 222 Local Government Act 1972) and common-law causes such as trespass.

Issues before the court: (i) whether the court may, in principle, grant injunctions binding persons who were not parties and were not identifiable when the order was made (so-called newcomer injunctions) other than only on an interim basis or for Convention rights; (ii) whether interim newcomer injunctions are lawful only where the persons are identifiable or already threaten to commit the wrong; (iii) whether protection of Convention rights could alone justify a Traveller injunction.

Reasoning and conclusions: The court reviewed the equitable jurisdiction to grant injunctions, the development of newcomer injunctions in cases such as Bloomsbury, Hampshire Waste Services, Gammell, Harlow, Ineos, Bromley, Cuadrilla and Canada Goose, and the procedural rules on commencement and service (CPR Part 8 and CPR rule 6.15). The court concluded:

• there is jurisdiction to grant newcomer injunctions (interim or final), necessarily by without-notice application as to newcomers;
• such injunctions are properly regarded as an equitable, discretionary remedy and may be justified where other remedies are inadequate and a compelling need is demonstrated;
• newcomer injunctions operate contra mundum in practice (anyone with notice may be bound and liable for contempt) and should not be justified merely by saying that a newcomer becomes a defendant by breaching the injunction;
• they must be accompanied by stringent safeguards: full and careful disclosure by the applicant, identification of the class as precisely as possible, clarity of prohibited acts, effective methods to publicise the application and the order, strict territorial and temporal limits (ordinarily reviewable and normally not exceeding one year without renewal), liberty to apply, provision for representation/intervention and consideration of alternatives (byelaws, statutory powers, site provision) and proportionality including article 8 rights and equality duties.

The court emphasised equity’s flexibility and declined to hold newcomer injunctions unlawful in principle, but required rigorous safeguards and review. The court therefore dismissed the appeal and upheld the general availability of newcomer injunctions subject to the conditions and guidance it set out.

Appeal dismissed. The Supreme Court held that courts have the equitable power (under section 37 of the Senior Courts Act 1981 and related law) to grant injunctions binding ‘newcomers’ (persons unknown at the date of the order) where there is a compelling need and adequate safeguards. Newcomer injunctions operate contra mundum in practice; they are neither limited to interim relief nor justified by treating breaches as self-identification of defendants. Such orders must be tightly tailored, temporally and geographically limited, supported by full disclosure, adequately publicised, and include generous liberty to apply and periodic review to protect newcomers’ rights (including Convention rights).

On appeal from the Court of Appeal ([2022] EWCA Civ 13), which reviewed judgments including Nicklin J’s decision in Barking and Dagenham London Borough Council v Persons Unknown [2021] EWHC 1201 (QB). The Supreme Court heard the consolidated appeal and delivered judgment on 29 November 2023 ([2023] UKSC 47).