Supreme Court decision on injunctions against Persons Unknown: A sheep in Wolves clothing?

The Supreme Court has just handed down a significant judgment in Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47 which involved the following issue: can a court grant an injunction (interim or final) against an unidentified and unknown person who has not yet committed or threatened an unlawful act in relation to use of land (i.e. a “newcomer” – and see para. 143 for a definition)? It answered “yes”.

The facts of the case involved unauthorised encampments of Gypsies or Travellers but the case has obvious implications for an area of work that I do a lot of – protestor injunctions.

I set out below 5 key takeaways from the judgment which are of broader interest. I am tempted to say that, whilst radically transforming the juridical underpinning of these injunctions, the actual practical impact of the Supreme Court’s judgment may well be minimal.

First, newcomer injunctions are a completely new type of injunction. They are essentially contra mundum orders – i.e. against the whole world – which may potentially embrace the whole of humanity: paras. 120, 132, 135 and 145. The effect is that doing an act contrary to such an order can be a contempt whether or not that person has been served with the proceedings: para. 132. Injunctions against newcomers are, in substance, always a type of without notice injunction: paras. 139, 142 and 151.

Secondly, newcomers are not parties to the proceedings: para. 26. That means it is not technically correct to refer to them as breaching an order, e.g. a protest injunction. But they can still be in contempt of court by knowingly acting contrary to an order and thereby interfering with the administration of justice. On that basis, it may be appropriate to refer to newcomers in these injunctions to demonstrate their breadth: para. 41. In preferring this analysis, the Supreme Court rejected the approach in South Cambs DC v Gammell [2006] 1 WLR 658 that a newcomer becomes a party by committing a breach of the injunction: paras. 106 and 125-130.

Thirdly, the Supreme Court was driven to this result because it considered there were no other effective ways of protecting a landowner’s rights in these instances: paras. 138, 143(viii), 150 and 164. Otherwise, a claimant would have to engage in a “rolling programme of applications for interim orders, resulting in litigation without end”: para. 138. That would be prioritising formalism over substance. It rejected the idea that “private law remedies are unsuitable ‘as a means of permanently controlling ongoing public demonstrations by a continually fluctuating body of protestors’”.

Fourthly, a newcomer injunction will only be justified if (my analysis is underlined):

1. There is a compelling need for the protection of civil rights that could not be adequately met by other available measures: paras. 167(i), 188 and 218. One consideration will be whether the claimant has taken appropriate steps to prevent the unlawful activity: para. 189. This would appear to be little different from the previous practice of the courts to be “inherently cautious” about granting such injunctions: para. 96.
2. There is a strong probability that a tort is to be committed causing real harm and the threat must be real and imminent: para. 218. Again, this is no different to the previous position.
3. The newcomers are defined as precisely as possible. The possibility of identifying them as a class by reference to conduct prior to what would be a breach should be explored and adopted if possible: para. 221. It is not entirely clear what this means, but it may be referring to the need to refer to newcomers as, e.g., “environmental protestors”.
4. The terms of the injunction must be sufficiently clear and precise and correspond as closely as possible to the actual or threatened unlawful conduct. Lawful activity must only be restrained if proportionate: paras. 222-223. Again, this is no different to the previous position.
5. The territorial and temporal scope of the injunctions must be strict and constrained as appropriate in light of the compelling circumstances: paras. 167(iv) and 225. Apparently no different to before. But the Supreme Court went on to say that newcomer injunctions “in our view ought to come to an end (subject to any order of the judge), by effluxion of time in all cases after no more than a year unless an application is made for their renewal”. This comment was made in the specific context of Traveller injunctions and it is very possible the Supreme Court intended to confine this comment to that scenario – see also paras. 235-236 which appear to distinguish protestor injunctions. But, if not, this will mark a point of difference from the previous practice. In a number of recent protestor cases, for example, the courts have granted final injunctions lasting 5 years but with in-built annual reviews.
6. Newcomers are protected by sufficient procedural protections such as (para. 167(ii)-(iii)):
   • Claimants being under an obligation to take all reasonable steps to draw the application and any order made to the attention of those likely to be affected by it. This could be done, for example, by advertising the application at the site or on suitable websites: paras. 175, 226 and 230-231. At the moment, the standard practice is for claimants to apply, pursuant to CPR r.6.15 and 6.27, for permission to serve newcomers alternatively – e.g., by posting claim documents and orders at the site, on a website and by email. The analysis of the Supreme Court – that newcomers are not parties and all claims affecting them are without notice – would appear to mean that such alternative service applications against them are now unnecessary. Claimants can just go ahead and take the various steps mentioned above without prior court involvement. But the previous standard practice may be preferable anyway as: (1) it will lead to the court sanctioning the proposed methods of notice; and, (2) for the reason set out at “Fifthly” below.
   • The most generous provision for liberty to apply to set aside the injunction: paras. 177 and 232. Such provisions have always been included in these injunctions.
   • The most stringent disclosure duty so as to research and present to the court everything that might have been said by newcomers against the grant of relief: para. 219. This will be a continuing duty. This does mark a difference with previous practice. Usually, once newcomers had been properly served with proceedings (through a permitted alternative method), it was considered that the claim was not being made without notice. The effect was that the duty of full and frank disclosure was not thought formally to apply. But, in light of the Supreme Court’s analysis, it appears that this duty will now apply throughout proceedings.

Fifthly, I am not sure that this is materially going to change the court’s approach when considering protestor injunctions for two reasons: (1) for the reasons set out above, the approach of the Supreme Court is very similar to the requirements already set out in paragraph 82 of Canada Goose v Persons Unknown [2020] 1 WLR 2802 and routinely followed. The Supreme Court expressly described the requirements set out in Ineos v Persons Unknown [2019] 4 WLR 100 – upon which Canada Goose built – as “helpful and practical”: para. 89; and, (2) the defendants in many protest injunctions involve a combination of (a) named defendants for whom the claimant has a postal address; (b) named defendants for whom the claimant does not have a postal address; (c) persons unknown who have or have threatened to act unlawfully (e.g. trespass); (d) persons unknown who are newcomers. The Supreme Court’s decision does not purport to change the approach to the categories of defendant in (a)-(c). In relation to the procedural fairness requirements for (d), most of the steps they propose are already commonplace. And to the extent the Supreme Court has said (d) does not need to be served but does need to be notified in some way, sufficient methods of publication will likely already be carried out as part of an alternative service order in respect of (b) and (c).

In conclusion, this is a very important judgment, but it is not clear to me that it has moved the dial in any significant way.

This article was written by Yaaser Vanderman.

Yaaser is the author of Manual on Protest Injunctions: Practice, Procedure and Persons Unknown.