Transport for London v Persons Unknown & Ors

A periodic review of a final civil injunction asks whether the order has been effective, whether grounds for discharge have emerged, whether continuation remains justified and whether a further order is justified. Where the injunction followed a full trial, a material change is ordinarily needed before it is discharged. Criminal offences do not necessarily provide an alternative remedy available to a private claimant or displace civil protection of different rights. The cessation of prohibited conduct, alongside continuation of similar conduct covered only by criminal law, may support a finding that the injunction remains an effective deterrent. A hybrid injunction may be reviewed under its liberty-to-apply provision, but a final costs order is not reopened on that review and can be challenged only on appeal.

Transport for London sought the annual review of final injunctions made against named defendants and Persons Unknown in proceedings concerning protest-related obstruction of strategic roads in London. The injunctions had been granted in the TfL IB Claims on 3 May 2023 and in the TfL JSO Claim on 8 June 2023.

The defendants argued that changes to the criminal law, including offences under the Public Order Act 2023, removed the need for civil injunctions. In the IB Claims, 114 named defendants also sought to replace the injunction with undertakings and to set aside the existing costs order. The central issues were whether the injunctions should continue, whether the undertakings should be accepted, and whether the costs order could be revisited.

The court held as follows.

1. Review and continuation. Applying the review approach in Wolverhampton CC v London Gypsies and Travellers & Ors [2023] UKSC 47; [2024] 2 WLR 45, the court considered the effectiveness of the Final Injunctions, any grounds for discharge, the justification for continuation and the evidence disclosed by all parties. Because the injunctions followed full trials determining risk and the balance of interests, a material change was needed before they should be discharged. No such change or other discharge ground had emerged.
2. Persons Unknown and named defendants. The conditions governing injunctions against Persons Unknown were satisfied. The injunctions addressed a compelling need, contained territorial and temporal limits, included procedural protections and remained just and convenient. The named defendants had been properly identified on evidence of prior protest participation and, in the IB Claims, prior arrest. Their inclusion was not based merely on their having appeared in unrelated proceedings.
3. Criminal law. The changes made by the Police Crime Sentencing and Courts Act 2022 had already been considered when the injunctions were granted, so there had been no material non-disclosure. The offences under sections 1 and 7 of the Public Order Act 2023 did not make continuation unnecessary. Criminal proceedings protected a different interest and were not remedies available to TfL as a private claimant. Section 18(6), read with sections 18 and 19, confirmed that civil proceedings could coexist with the new offences.
4. Effectiveness. The absence of prohibited road-blocking protests, alongside continued slow marches covered by the criminal law but not by the injunctions, supported the inference that the injunctions had deterred road blocking. There remained a real risk that sitting-down protests would resume if the injunctions were discharged.
5. Undertakings. The undertakings offered by the Lewis Applicants were accepted. The IB Final Injunction was discharged as against those defendants, but they remained parties so that the undertakings could be enforced if necessary.
6. Costs. The costs order in the IB Judgment Order was final and could not be varied on this review. The liberty-to-apply provision concerned the hybrid injunction, not the separate costs order. The slip rule did not apply because the order was not the result of an accidental slip, omission or mistake. The Lewis Application was dismissed insofar as it sought to set aside the costs order.
7. Costs of the review. There was no order as to the costs of the review hearing or the Lewis Application.

Not an appeal. The review concerned final injunctions made in the TfL IB Claims on 3 May 2023 following [2023] EWHC 1038 (KB), and in the TfL JSO Claim on 8 June 2023 following [2023] EWHC 1201 (KB).