The Newcomer Injunction: A New Type of Injunction
In a groundbreaking decision handed down on 29 November 2023, the Supreme Court has ruled that the court has jurisdiction to grant a wholly new type of injunction: Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47
The Issue
The fundamental issue at the centre of the appeal was whether the court has the power (and if so, on what basis, and subject to what safeguards) to grant an injunction which binds persons who are not identifiable when the injunction is granted, and have not at that time infringed or threatened to infringe any right of the claimant (and thus the claimant has no cause of action against them), but may do so later: a “newcomer”.
A New Type of Injunction
The overarching principle relied upon by the Appellants to challenge such injunctions was that equity acts in personam rather than either in rem or contra mundum. The ordinary rule is that “you cannot have an injunction except against a party to the suit”: Iveson v Harris (1802) 7 Ves Jr 251. Given that newcomers cannot be parties to the proceedings when an injunction is granted, it follows that newcomer injunctions (if permissible) depart from the court’s usual practice. The Court identified the particular features of a newcomer injunction ([143(i)-(viii)]), and concluded that:
“Cumulatively those distinguishing features leave us in no doubt that the injunction against newcomers is a wholly new type of injunction with no very closely related ancestor from which it might be described as evolutionary offspring.”
As the Supreme Court recognised, newcomer injunctions are essentially made without prior notice against persons who cannot be known at the time the injunction is made. They therefore potentially apply to anyone in the world.
That being the case, did the court have jurisdiction to grant such a radical injunction?
In the High Court, Nicklin J was resoundingly of the view that there was no power to grant an injunction binding against newcomers (Barking and Dagenham v Persons Unknown [2021] EWHC 1201). The Court of Appeal disagreed and overturned that decision (Barking and Dagenham v Persons Unknown [2022] EWCA Civ 13), but the law was left in a state of flux due to two conflicting decisions in a space of two years.
Conflicting Authority
The conflicting decision was Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303, a protester case. In that case, the Court of Appeal concluded that:
“89. A “final injunction cannot be granted in a protestor case against “persons unknown” who are not parties at the date of the final order, that is to say Newcomers who have not by that time committed the prohibited acts and so do not fall within the description of the :persons unknown” and who have not been served with the claim form. There are some very limited circumstances, such as in Venables v News Group Newspapers Ltd [2001] Fam 430, in which a final injunction may be granted against the whole world. Protestor actions, like the present proceedings, do not fall within that exceptional category.”
Supreme Court Decision
This is the first time that the Supreme Court has had the opportunity to consider whether this type of injunction is permissible as a matter of principle and jurisdiction.
Given the wide reaching implications of the appeal, various parties intervened resulting in the Supreme Court hearing representations on behalf of three charities representing Gypsies and Traveller (Appellants), ten Local Authorities (Respondents), and four interveners: Friends of the Earth, Liberty, HS2 and Secretary of State for Transport.
After a detailed exposition of the law and the incremental development of injunctions ([14]–[142]), the Supreme Court disagreed with the conclusion reached by the Court of the Appeal in Canada Goose (at [89]) and upheld the decision of the Court of Appeal below, albeit for different reasons, and unanimously dismissed the appeal.
The Supreme Court’s key conclusions were that:
- The court does have jurisdiction and the power to grant an injunction against newcomers, that is, persons who at the time of the grant are neither defendants nor identifiable, and who are described in the order only as persons unknown.
- A newcomer injunction may be granted on an interim or final basis. There is no principled basis for drawing a binary distinction between those types of order.
- By its very nature, an application for a newcomer injunction is without notice. Recognising this is essential to understanding how they operate. But steps should still be taken by an applicant to widely publicise the seeking of an injunction to bring it to the attention of anyone who may be affected – see below.
- Such an injunction will be effective to bind anyone who has notice of it while it is in force, even though that person had no intention and had made no threat to do the act prohibited at the time the injunction was granted and was therefore someone against whom, at that time, the applicant had no cause of action.
- A newcomer injunction is inherently an order with effect contra mundum (i.e. against the world) – as was argued on behalf of Wolverhampton City Council.
- In deciding whether to grant a newcomer injunction and, if so, upon what terms, the court will be guided by principles of justice and equity and, in particular:
- That equity provides a remedy where the others available under the law are inadequate to vindicate or protect the rights in issue.
- That equity looks to the substance rather than to the form.
- That equity takes a flexible approach to the formulation of a remedy.
- That equity has not been constrained by hard rules or procedure in fashioning a remedy to suit new circumstances.
- The words of Lady Hale in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11 are resonant in this respect:
“The underlying principle is ubi ius, ibi remedium: where there is a right, there should be a remedy to fit the right. The fact that ‘this has never been done before’ is no deterrent to the principled development of the remedy to fit the right, provided that there is proper procedural protection for those against whom the remedy may be granted.”
- When seeking a newcomer injunction in a case involving unlawful encampments by persons unknown, the court is likely to expect an applicant:
- To demonstrate a compelling need to protect civil rights or enforce public law which is not adequately met by any other available remedies.
- To build into the application and the order procedural protection for the rights of newcomers, sufficient to overcome the potential for injustice arising from the fact that an application will necessarily be without notice. This is likely to include:
- Advertisement so as to alert potentially affected travellers and bodies which may be able to represent their interests at the hearing.
- Provision for liberty to persons affected to apply to vary or discharge the order without having to show a change of circumstances.
- Temporal and geographical limits on the scope of the order to ensure it is proportional to the rights and interests to be protected.
- To comply in full with the strict disclosure duty which attaches to the making of a without notice application, including bringing to the court’s attention any matter which (after due research) the applicant considers that a newcomer might wish to raise in opposition to the making of the order.
- Ultimately to demonstrate that it is just and convenient in all the circumstances that the newcomer injunction sought should be made.
If those considerations are adhered to by an applicant, the Supreme Court concluded that there is no reason in principle why newcomer injunctions should not be granted.
Wider Significance
Although the appeal arose in the context of unlawful encampments by Gypsies and Travellers, the decision has far wider significance. The availability of injunctions against persons who cannot be identified in advance has become increasingly important in a range of contexts in modern times, including car cruising, urban exploring, industrial picketing, protesting, breaches of confidence, intellectual property breaches, and various unlawful activities related to the internet and social media.
As the Supreme Court recognised, the issue is liable to arise whenever there is a potential conflict between the maintenance of private or public rights and the future behaviour of individuals who cannot be identified in advance. The advent of the internet, enabling wrongdoers to violate rights behind a veil of anonymity, has brought the need for injunctions against unidentified persons into sharp focus. If injunctions were available only against identifiable individuals, then the anonymity of wrongdoers operating online risks conferring upon them an immunity from the operation of the law.
Uncharted Water
The judgment has brought much needed clarity and has provided comprehensive guidance, to help parties and first instance judges to navigate such ‘uncharted water’.
Importantly, the Supreme Court has endorsed the principled development of the law to find a remedy to fit rights which are deserving of protection, provided that there is proper procedural protection for those against whom the remedy may be granted.
Michelle Caney, led by Mark Anderson KC, represented the successful First Respondent, Wolverhampton City Council. Michelle and Mark were instructed at first instance and appellate level by Mushtaq Khan, Lead Lawyer, and Adam Sheen, Senior Solicitor, of Wolverhampton City Council Legal Services.
