Supreme Court confirms power to grant 'newcomer injunctions'.
Développement en droit 5 décembre 2023 5 décembre 2023
UK Real Estate Insights
The Supreme Court has handed down its decision in Wolverhampton City Council and others v London Gypsies and Travellers and others , holding that the Court has power to grant a wholly new type of injunction known as a ‘newcomer injunction’. The decision provides much needed clarity on injunctions in the context of Gypsies and Travellers setting up encampments on local authority land and the issue of granting injunctions against ‘persons unknown’.
The appeal concerned injunctions obtained by local authorities which prevent unauthorised encampments by Gypsies and Travellers on local authority land.
Typically, injunctions are required to be addressed to a specific person and requires them to refrain from doing a specific act. In this appeal, the Court was asked to decide whether the Court had the power (and on what basis) to grant injunctions against persons who are not known and are unidentified at the date of the grant of the injunction, even before such persons have performed the act the injunction prohibits.
The appeal arose as a result of 38 different local authorities obtaining injunctions designed to prevent Gypsies and Travellers from camping on local authority land without permission between 2015 and 2020. Such injunctions were obtained by the local authorities without notifying the other party, and once obtained, copies of the injunctions were displayed at the relevant sites.
The injunctions were addressed to ‘persons unknown’ because the Gypsies and Travellers who wanted to camp on the site could not be identified in advance. The unknown persons referred to in the injunctions had also yet to trespass or commit any other unlawful activity on the local authority land.
From mid-2020, the local authorities made applications to extend or vary the injunctions. On hearing one of the cases, a High Court judge decided that there was a need to review all newcomer injunctions affecting Gypsies and Travellers. The High Court judge decided the Court did not have the power to grant newcomer injunctions in the longer term as this might be disproportionate and potentially oppressive.
The local authorities appealed the decision. The Court of Appeal held that the Court had the power to grant newcomer injunctions.
Judgment and reasons
The appellants appealed to the Supreme Court. The Supreme Court agreed with the Court of Appeal and unanimously dismissed the appeal. It was held that the Court has power to grant newcomer injunctions.
The Court held that newcomer injunctions are a wholly new form of injunction granted without prior notice against unknown persons – potentially applying to anyone in the world. The Court has the power to grant such injunctions due to the power being equitable in origin (subject to any statutory restrictions) and the power not being limited to any pre-existing categories. As such, injunctions can be granted in new circumstances as and when required.
The Court was nevertheless clear in establishing a series of safeguards when considering newcomer injunctions:
1. The Court was clear that newcomer injunctions to prohibit unauthorised encampments by Gypsies and Travellers will only be justified if the local authority has demonstrated that there is a need to protect civil rights or enforce public law that has not been adequately met by other remedies.
2. Newcomer injunctions are made without notice. As such, the application for the injunction should be advertised widely to give those affected by the injunction an opportunity to make representations before the injunction is made.
3. Once a newcomer injunction has been granted, this should be displayed prominently at the relevant site.
4. The applicant local authority will be required to comply with a strict duty to disclose to the Court any matter which a newcomer might raise to oppose the making of a newcomer injunction. This is because the interests of Gypsies and Travellers are not typically represented at the hearings where newcomer injunctions are granted.
5. Newcomer injunctions should be limited and should not be applied for a disproportionately long period of time or apply to a disproportionate geographical area.
The Court must be satisfied overall that it is just and convenient that a newcomer injunction is granted.
The decision provides much needed clarity on injunctions in the context of Gypsies and Travellers setting up encampments on local authority land. Newcomer injunctions mean that local authorities now have an effective means of enforcing their legal rights over a longer period of time.
The Court was clear that it should only exercise this power in circumstances where there is a real need to enforce public law or protect civil rights and there is a risk of future behaviour by individuals that cannot be identified in advance. The safeguards outlined by the Court are likely to evolve as more newcomer injunctions are applied for and considered by the Courts.
The present case focused on local authority applicants and injunctions in Gypsy and Traveller cases, however the Court noted that newcomer injunctions may be justified in other cases in different contexts such as protester cases, intellectual property or breach of confidence cases. In considering protestor cases, the Court acknowledged that the circumstances of future cases would vary significantly in terms of the range and number of people affected by the making of an injunction, the legal right to be protected, the illegality to be prevented and the rights of the respondents to the application. Any future cases would be subject to a full and careful assessment as to whether a newcomer injunction would be justified having full regard to the principles and safeguards outlined above.
As such, the Court has not limited newcomer injunctions to local authority applicants or specifically Gypsy and Traveller trespass cases. If an applicant can demonstrate a compelling need for a protection of civil rights or the enforcement of public law whilst having regard to the safeguards, the Court noted that there was no reason in principle why newcomer injunctions should not be granted.
It remains to be seen how the Court will consider this new type of injunction in other modern contexts and we will keep alive to any further developments. It seems quite likely that private landowners (such as retail and industrial parks or similar) may wish in appropriate circumstances, to avail itself of newcomer injunctions.