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  UKSC 47
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  EWHC 1201). The Court of Appeal disagreed and overturned that decision (Barking and Dagenham v Persons Unknown  EWCA Civ 13), but the law was left in a state of flux due to two conflicting decisions in a space of two years.
The conflicting decision was Canada Goose UK Retail Ltd v Persons Unknown  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  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 (–), the Supreme Court disagreed with the conclusion reached by the Court of the Appeal in Canada Goose (at ) 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 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.”
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.
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.
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.
Written by Michelle Caney