South Cambridgeshire DC v Gammell [2005] EWCA CiV 1429

David Elvin QC and Richard Langham represented South Cambridgeshire DC.”>In South Cambridgeshire DC v Gammell [2005] EWCA Civ 1429 (2 conjoined cases), the appellants had become occupiers of the land in question after the injunction had been granted. The Court of Appeal rejected the submission that the principles of South Buckinghamshire v. Porter should apply by way of analogy in such a case. The Master of the Rolls stated the following principles (at paragraph 34):   “33. By the time of the committal proceedings, in each case the appellant was a defendant to the proceedings, was in breach of the injunction and, given her state of knowledge, was in contempt of court. Those conclusions follow in each case from the terms of the injunction, the actions of the appellant and the state of knowledge of the appellant. The conclusions do not depend upon any judicial decision involving the exercise of any discretion or balance on the part of a judge. The exercise of such a discretion or balance only arises on an original application by a claimant for an injunction against a named party, on any subsequent application to vary or discharge by a person named as a defendant, and affected by the injunction, and to some extent at least in the course of a sentencing exercise. In the light of the principles in the authorities and those conclusions I would summarise the position as follows. 1. The principles in South Bucks set out above apply when the court is considering whether to grant an injunction against named defendants. 2. They do not apply in full when a court is considering whether or not to grant an injunction against persons unknown because the relevant personal information would, ex hypothesi, not be available. However this fact makes it important for courts only to grant such injunctions in cases where it is not possible for the applicant to identify the persons concerned or likely to be concerned. 3. The correct course for a person who learns that he is enjoined and who wishes to take further action, which is or would be in breach of the injunction, and thus in contempt of court, is not to take such action but to apply to the court for an order varying or setting aside the order. On such an application the court should apply the principles in South Bucks . 4. The correct course for a person who appreciates that he is infringing the injunction when he learns of it is to apply to the court forthwith for an order varying or setting aside the injunction. On such an application the court should again apply the principles in South Bucks . 5. A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant’s personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in South Bucks and in Mid Bedfordshire . 6. In cases where the injunction was granted at a without notice hearing a defendant can apply to set aside the injunction as well as to vary it for the future. Where, however, a defendant has acted in breach of the injunction in knowledge of its existence before the setting aside, he remains in breach of the injunction for the past and in contempt of court even if the injunction is subsequently set aside or varied. 7. The principles in South Bucks are irrelevant to the question whether or not a person is in breach of an injunction and/or whether he is in contempt of court, because the sole question in such a case is whether he is in breach and/or whether he is in contempt of court. It should be noted that neither appellant applied to the judge for an order varying the injunction for the future. It follows that the judge had no proper opportunity in each case to apply those principles to the case before her.” David Elvin QC and Richard Langham represented South Cambridgeshire DC.