"Stay off my land… whoever you are" – Supreme Court appeal on newcomer injunctions

Why is the Supreme Court decision so important?

The recent Supreme Court decision of Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47 on newcomer injunctions allows landowners to apply for both interim and final injunctions against 'persons unknown' to prevent unlawful occupation.

This means that unlawful occupation does not need to occur, or even be threatened at the time the landowner applies for the injunction. These injunction are made 'contra mundum' i.e. once ordered anyone will be bound, provided they have notice of the order. The landowner must prove certain facts within their application. However, this is likely to become an important tool to protect land from unwanted occupiers.

What is a newcomer injunction?

A "newcomer injunction" is a relatively new concept which enables landowners to bring an injunction against an unnamed party or 'persons unknown'.

It all began around 2015 when local authorities wanted to prevent Gypsies and Travellers from unlawfully setting up camp on their land. The local authorities could not use a normal injunction, i.e. an injunction with a named defendant because either:

1. They did not know who was going to unlawfully occupy their land in the future or when this would happen. Therefore, they were unable to name a party as the defendant to the proceedings; or
2. They knew who was unlawfully occupying their land; but by the time they had issued proceedings and received the injunction, the original group (and named defendant) had vacated and was replaced by another. Therefore the injunction became unenforceable as the named defendants were gone.

To resolve this problem, local authorities pursued a different approach; and relied upon the following provisions of planning law and public law, to issue proceedings against 'persons unknown':

• Section 187B of the Town and County Planning Act 1990, which enables the court to grant an injunction to prevent actual or apprehended breach of planning control and public law and bring injunctions against persons unknown; and
• Section 222 of the Local Government Act 1972 where local authorities could bring proceedings to enforce obedience of public law.

As such, 38 local councils issued proceedings against 'persons unknown'. Practically, this meant that these 'persons unknown' were not represented at the injunction hearings. The injunction was then issued 'without notice' and displayed at a prominent location on the land, to warn newcomers that the injunction was in place.

What happened next?

From mid-2020, the local authorities made a flurry of applications to either extend or vary these injunctions which were nearing their end, seeking final inunction orders. Due to the volume of applications, in one such application, Nicklin J decided there was a need to review newcomer injunctions as a whole and called in all the relevant cases to be managed together in the High Court.

High Court

In the High Court case of London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors[2021] EWHC 1201 (QB), Nicklin J determined that interim injunctions could be granted against persons unknown. However, he determined that final injunctions could only be granted against parties who had been identified at the time of the final order and had an opportunity to contest the final order sought.

This meant that if the local authority could identify any one of the 'persons unknown' at the time of the final order, the final injunction would bind all those who could be identified. However, if the local authority could not identify anyone, the final order bound no one. The local authorities appealed this decision to the Court of Appeal.

Court of Appeal

In the Court of Appeal decision of London Borough of Barking and Dagenham & Ors v Persons Unknown & Ors[2022] EWCA Civ 13 (where again the relevant cases were managed together), the Court of Appeal overturned the High Court's decision. Sir Geoffrey Wos MR held that the High Court was wrong to state that the court could not grant final injunctions against persons who are not identified at the date of the final order. The Gypsies and Travellers subsequently appealed this decision to the Supreme Court.

Supreme Court's decision

In the case of London Gypsies and Travellers v Wolverhampton City Council [2023] UKSC 47, the Supreme Court was asked to consider whether the court has the ability to grant an injunction to a 'newcomer' i.e. parties who are not named on the claim, other than on an interim basis.

What did the Supreme Court decide?

The Supreme Court upheld the Court of Appeal's decision. However, this was on slightly different reasoning. The Supreme Court determined that:

1. The court does have jurisdiction to grant an injunction against 'newcomers' on an interim or final basis, on an application without notice.
2. The 'newcomer injunction' would bind anyone who has notice of it whilst it remains in force, even if at the time the injunction was granted the claimant had no course of action (i.e. that person had no intention, or made no threat, of the prohibited act when the injunction was granted).
3. When deciding whether to grant the newcomer injunction, and upon what terms, the court will be guided by principles of justice and equity. They will consider whether any other remedies are available, consider the substance, not form of the injunctions (i.e. they will focus on whether the form of the injunction will actually achieve the desired remedy), take a flexible approach to the form of order and terms attached to the order, and will not be constrained by hard rules of procedure.

What must a landowner prove to apply for a newcomer injunction?

The Court acknowledged that issuing an injunction without notice is usually reserved for emergency situations. Therefore to ensure that the newcomers' rights are protected, the Supreme Court also outlined what landowners must prove to apply for a newcomer injunction. Landowners must:

1. Demonstrate a compelling need for civil rights and/or public law protection (i.e. there is a high chance of landowners' right being infringed, which cannot be remedied by statutory remedies);
2. Include procedural protection in favour of the newcomers in the application and order e.g. advertise the proceedings so that anyone potentially affected can object or be represented at the hearing;
3. Comply fully with the disclosure duties attached to a without notice application (i.e. disclose all information which will assist both the landowner and the 'persons unknowns' case, even though it is a one-sided application); and
4. Demonstrate that it is just and convenient in the circumstances that a newcomers order should be made.

Conclusion

Although the Supreme Court decision does allow newcomer injunctions to be granted on an interim or final basis to prevent behaviour that hasn't occurred or been threatened, it now imposes a higher threshold upon landowners for making such an application. Therefore, this remains a helpful tool for landowners, however it may result in additional work in preparing applications.

For any further questions about the points raised here or on newcomer injunctions, please contact Senay Nihat and Minerva Christiaan-Rakus.