Landowners and Local Authorities Welcome Newcomer Injunction Decision

January 31, 2024 Advisory

On 1 December 2023, the Supreme Court breathed new life into an equitable remedy known as the ‘newcomer injunction’. Their judgment in Wolverhampton City Council and others v London Gypsies and Travellers[1] unanimously confirmed that the court may exercise its power to grant injunctions against persons unknown.

This highly anticipated judgment will not only be embraced by landlords and public authorities, but also parties concerned and affected by cybercrime, industrial and environmental protest disputes, intellectual property disputes and unlawful social media activities.

An advanced element of a newcomer injunction is that it may be obtained against persons who are not just unidentifiable, but also those who have not breached, or threatened to breach the act which is prohibited by the order – but could do so in the future. 

Background

The proceedings emerged as a result of several local authorities seeking injunctions against Gypsies and Travellers to prevent them from future unauthorised encampments on their land. The court granted several injunctions between 2015 and 2020, which were addressed to ‘persons unknown’ as the campers could not be identified in advance of the proceedings. Once the injunction was granted, paper copies would be displayed at the relevant sites.

With time, the scope of the injunction expanded, which made room for the “newcomer”; an injunction that could be obtained without notice and at hearings where the interests of those persons were not represented and against persons who had yet to trespass or commit any unlawful activity on the land.

The High Court felt it necessary to review the principles behind the newcomer, allowing various bodies representing the Gypsies and Travellers to be heard in a thread of conjoined cases. In 2021 the court decided that final newcomer injunctions could not be granted and may only be issued on an interim basis. Keeping fairness in mind, the court held that final injunctions would impact those who were not parties to any proceedings and would deprive them of the right to be heard which the court considered to be entirely disproportionate and arguably oppressive.

The Court of Appeal however overturned this decision, finding that final injunctions could be granted against newcomers and on an application made without notice to those affected. The court explained that the injunction could encapsulate persons who can be described by reference to the behaviour prohibited in an order, and they may become a party to that action if they contravene the injunction.

The Judgment

The Supreme Court unanimously dismissed the appeal put before it and found in favour of the local authorities, affirming the existence of a newcomer injunction. That is not to say that they are handed out on a silver platter, and the court may only do so if the following conditions are satisfied:

  1. There is a compelling need for an injunction, and no other remedy is adequate or available to the local authority. 
  2. There is procedural protection for the rights of those affected by the injunction, as they will not have had notice of the application. This includes the local authority taking all reasonable steps to bring the injunction to the newcomer’s attention. 
  3. The local authority has complied with its duty of full and frank disclosure, which includes the obligation to provide complete and accurate information that a newcomer may have set out before the court. 
  4. The injunction is clearly defined and contains strict geographical and temporal limits. It should not extend for a long period of time or beyond a disproportionate geographical area. 
  5. There is liberty to apply to vary or discharge the order for anyone affected by the terms of the injunction. 
  6. Based on the facts, it is “just and convenient” for an injunction to be granted. 

Though this case centred on the unauthorised encampments by Gypsies and Travellers, the decision will be welcomed by landowners and authorities who have not succeeded in obtaining a ‘persons unknown’ injunction against trespassers to their land. Addressing this notion, the Supreme Court noted that newcomer injunctions could also be enforced against protesters who engage in disruptive behaviour such as blocking roads/motorways, and against those who have not even threatened to carry out the prohibited act.

As a rule of thumb, each case will turn on its own facts, but there is essentially no reason in theory that a newcomer injunction would not be granted provided that the conditions as elaborated by the Supreme Court are satisfied. 

A practical and cost-conscious point worth noting is that alternative measures should be explored by landowners and local authorities, as by their very nature, newcomer injunctions are pursued against persons unknown, so costs might not be recoverable immediately after the injunction is issued.


[1] [2023] UKSC 47.

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