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Injunctions against the World:

Injunctions against the World:

Robert Winspear discusses the Court of Appeal’s decision in LB Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13

The Court of Appeal holds that injunctions can be granted against persons who are unknown and unidentified at the date of the order, overturning the High Court judgment of Nicklin J [2021] EWHC 1201 (QB).

What is the case about?

The case concerned a number of injunctions (interim and final) that had been granted in favour of local authorities against unidentified and unknown persons who may in the future set up unauthorised encampments on local authority land (described as “newcomers”).

The proceedings arose out of Nicklin J dealing with an application in the case of London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB) and raising with counsel the issues created by Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR. Nicklin J explained that he had spoken to the President of the Queen’s Bench Division and her current view was to direct that all similar claims be brought together and managed centrally, so that the injunctions already granted could be considered in light of the changing legal landscape around ‘newcomer’ injunctions.

All the relevant injunctions then came before the High Court: applications brought by a total of 38 local authorities, from all parts of England and Wales.

Nicklin J decided that a final injunction can only bind those who have been made parties to the litigation, so that a final injunction brought against “Persons Unknown” should not be drafted in a way that captures newcomers. He relied on the judgment in Canada Goose, as well as Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6.

What did the Court decide?

After a review of the case law, Sir Geoffrey Vos MR, giving the lead judgment, held that Nicklin J was wrong. As a starting point, he held that the court “undoubtedly” had the power under section 37 of the Senior Courts Act 1981 to grant an injunction that bound non-parties to proceedings; this principle applied without distinction to both interim and final injunctions.

He continued that Canada Goose, and as a result Nicklin J, ignored the reasoning in South Cambridgeshire District Council v. Gammell [2005] EWCA Civ 1429 and Ineos Upstream Ltd v. Persons Unknown and others [2019] EWCA Civ 515, that an unknown and identified person knowingly violating an injunction makes themselves parties to the action.

The Master of the Rolls explained that this reasoning was not inconsistent with the decision in Cameron, because in that case Lord Sumption had not been required to consider persons who did not exist at all and would only come into existence in the future.

Comment

Although this case focuses on injunctions sought by local authorities against the Gypsy and Traveller community, it is likely to have wider implications. The Master of the Rolls even commented that newcomer injunctions may be appropriate in some protestor cases, and mentioned the possibility of urban exploring injunctions (that is, injunctions to stop trespassers from climbing the exterior of tall buildings such as the Shard).

The Court expressly declined to limit in advance the types of injunction that “may in future be held appropriate to make under section 37 against the world.” More litigation to come then.

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Robert Winspear

Call 2019

Robert Winspear

26.01.2022


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