Social Welfare Lawyers in the Centre of Birmingham

Into the Sea? Wide Injunctions

London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB)

Ever since 2015 when Harlow Council obtained a wide injunction against ‘persons unknown’ camping on a large number of parcels of land, Gypsies, Travellers and their supporters have been concerned at the slow but sure spread of these injunctions. If every local authority in England obtained such an injunction where would Gypsies and Travellers who have no place to stop (due to the failure of the very same local authorities to provide pitches, both permanent and transit),  go? Into the sea?

By the time that the Court of Appeal first addressed the lawfulness of such injunctions in the case of Bromley LBC v Persons Unknown & ors [2020] PTSR 1043, some 38 local authorities in England had been granted wide injunctions. Bromley was the first case in which the Courts heard arguments put forward on behalf of Gypsies and Travellers, as a result of an intervention by London Gypsies and Travellers (LGT). The Court of Appeal upheld the judgment of Leigh-Ann Mulcahy QC (sitting as a deputy High Court Judge) who refused Bromley a wide injunction but allowed a much narrower injunction just directed at fly tipping. In doing so, the Court of Appeal set down various criteria before such a wide injunction might be granted.

For example, Lord Justice Coulson, giving the leading judgment, stated:

It is a striking feature of many of the documents that the court was shown that the absence of sufficient transit sites has repeatedly stymied any coherent attempt to deal with this issue. The reality is that, without such sites, unauthorised encampments will continue and attempts to prevent them may very well put the local authorities concerned in breach of the Convention (para 100).

He summarised the main points as follows at para 108:

a) When injunction orders are sought against the Gypsy and Traveller community, the evidence should include what other suitable and secure alternative housing or transit sites are reasonably available. This is necessary if the nomadic lifestyle of the Gypsy and Traveller community is to have effective protection under article 8 and the Equality Act.

b) If there is no alternative or transit site, no proposal for such a site, and no support for the provision of such a site, then that may weigh significantly against the proportionality of any injunction order.

c) The submission that the Gypsy and Traveller community can “go elsewhere” or occupy private land is not a sufficient response, particularly when an injunction is imposed in circumstances where multiple nearby authorities are taking similar action.

d) There should be a proper engagement with the Gypsy and Traveller community and an assessment of the impact …an injunction might have, taking into account their specific needs, vulnerabilities and different lifestyle. To this end, the carrying out of a substantive EIA, so far as the needs of the affected community can be identified, should be considered good practice, as is the carrying out of welfare assessments of individual members of the community (especially children) prior to the initiation of any enforcement action.

e) Special consideration is to be given to the timing and manner of approaches to dealing with any unlawful settlement and as regards the arrangements for alternative pitches or housing.

Most powerfully, he concluded at para 109:

Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.

There have also been developments in the procedural requirements for the making of injunctions against unnamed defendants.  In Canada Goose v Person Unknown [2020] 1 WLR 2802, a case involving protesters outside a clothing store which sold clothes that included animal products, the Court of Appeal set out the following “procedural guidelines applicable to proceedings for interim relief against ‘persons unknown’” ( at para 82):

(1) The “persons unknown” defendants in the claim form are, by definition, people who have not been identified at the time of the commencement of the proceedings. If they are known and have been identified, they must be joined as individual defendants to the proceedings. The “persons unknown” defendants must be people who have not been identified but are capable of being identified and served with the proceedings, if necessary by alternative service such as can reasonably be expected to bring the proceedings to their attention. In principle, such persons include both anonymous defendants who are identifiable at the time the proceedings commence but whose names are unknown and also Newcomers, that is to say people who in the future will join the protest and fall within the description of the “persons unknown”. 

(2) The “persons unknown” must be defined in the originating process by reference to their conduct which is alleged to be unlawful. 

(3) Interim injunctive relief may only be granted if there is a sufficiently real and imminent risk of a tort being committed to justify quia timet relief.

(4) As in the case of the originating process itself, the defendants subject to the interim injunction must be individually named if known and identified or, if not and described as “persons unknown”, must be capable of being identified and served with the order, if necessary by alternative service, the method of which must be set out in the order. 

(5) The prohibited acts must correspond to the threatened tort. They may include lawful conduct if, and only to the extent that, there is no other proportionate means of protecting the claimant’s rights.

(6) The terms of the injunction must be sufficiently clear and precise as to enable persons potentially affected to know what they must not do. The prohibited acts must not, therefore, be described in terms of a legal cause of action, such as trespass or harassment or nuisance.  They may be defined by reference to the defendant’s intention if that is strictly necessary to correspond to the threatened tort and done in non-technical language which a defendant is capable of understanding and the intention is capable of proof without undue complexity. It is better practice, however, to formulate the injunction without reference to intention if the prohibited tortious act can be described in ordinary language without doing so.

(7)  The interim injunction should have clear geographical and temporal limits. It must be time limited because it is an interim and not a final injunction.

As to final injunctions, the Court of Appeal in the Canada Goose case stated (at para 89):

A final injunction cannot be granted in a protester 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. Protester actions, like the present proceedings, do not fall within that exceptional category. The usual principle, which applies in the present case, is that a final injunction operates only between the parties to the proceedings: Attorney-General v Times Newspapers Ltd [1992] 1 AC 191, 224. That is consistent with the fundamental principle … that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard.

They continued (at para 91):

That does not mean to say that there is no scope for making “persons unknown” subject to a final injunction. That is perfectly legitimate provided the persons unknown are confined to … those anonymous defendants who are identifiable (for example, from CCTV or body cameras or otherwise) as having committed the relevant unlawful acts prior to the date of the final order and have been served (probably pursuant to an order for alternative service) prior to the date.

Since the Court of Appeal handed down its judgments in the Bromley and Canada Goose cases a number of local authorities have applied for wide injunctions, or for the continuation of existing wide injunctions. An application by Harlow District Council was withdrawn during the hearing. Interim injunctions (one for a very limited period of time) were granted to Test Valley Borough Council and Canterbury City Council respectively. In another case, Wolverhampton Metropolitan Borough Council was granted its application to extend the term of a wide injunction until January 2022. In that case, the Judge was very influenced by the fact that planning permission had been granted for a new transit site that was due to open in January 2021.

However, on 2 October 2020, in Enfield LBC v Persons Unknown [2020] EWHC 2717 (QB), Nicklin J handed down a judgment that will have far-reaching ramifications for all local authorities with wide injunctions in place. He refused Enfield’s application for retrospective validation of alternative service of the claim form relating to a wide injunction granted back in October 2017 (which the local authority had applied to renew). The Judge also refused Enfield’s application for a fresh interim injunction. LGT took part in these proceedings as an ‘interested party’. LGT instructed CLP and were represented at the hearing by Owen Greenhall of Garden Court Chambers.

Enfield had originally obtained a final wide injunction lasting for 3 years on 4 October 2017 and the local authority sought to vary its terms so as to extend it for a further period of time. That application came before Nicklin J on 28 September 2020. Referring to that application, Nicklin J stated (at para 4):

…perhaps most seriously, it became clear that the Claimant had failed to serve a claim form on any of the Defendants in the original proceeding. CPR 6.3 sets out the methods of permissible service for a Claim Form. Without an order for alternative service, the only method by which the Persons Unknown could be validly served was by personal service in accordance with CPR 6.5. The Claimant did not contend that the Claim Form had been personally served on any of these Defendants. No order had been made for service of the Claim Form by alternative means pursuant to CPR 6.15, and no order had been made dispensing with service of the Claim Form under CPR 6.16. The Claim Form had therefore not been validly served on anyone when the matter came before the court on Monday this week.

Faced with these problems, Enfield withdrew the application for a variation of the final injunction (it had also been questioned whether such a variation could be granted in any event).

Enfield then made an application to seek to retrospectively validate, as good service of the Claim Form, steps originally taken back in 2017. But those steps were limited: the Claim Form had only been available on the Council’s website and at local libraries; It was not one of the documents that was physically attached to posts on each of the 130 sites that were subject to the original injunction, and Ilinca Diaconescu of LGT lodged evidence of the level of digital exclusion within the Gypsy and Traveller community. In the event, Nicklin J refused the application. He stated:

21. I refuse the Claimant’s application for an order under CPR 6.15(2). I am not satisfied that the council has demonstrated a good reason to authorise service by the method of posting the Claim Form on the Claimant’s website, and the other steps that were taken, for example, by placing it in libraries and adverting to the existence of the injunction in the newspaper articles.

a. The Claimant has not demonstrated that this alternative method, in fact, brought the Claim Form to the attention of anyone in the category of Persons Unknown, who were the Defendants to the claim, save perhaps one person who made an enquiry in relation to the matter of the Claimant’s Legal Department.
b. Further, the Claimant has not demonstrated that this method of service was likely to bring it to the attention of the Persons Unknown Defendants. The level of digital exclusion in the gypsy and traveller community demonstrated in Ms Diaconescu’s evidence means that, if anything, the likelihood was that, if effective at all, it would reach only a minority of the Persons Unknown.

22. I am satisfied that had the Claimant sought an order for alternative service back in 2017, the court, as a minimum, would have required service of the Claim Form by posting it at each of the sites covered by the injunction. Making the Claim Form available on the council’s website, and advertising its availability there and in libraries, both in the notices that were posted and in the newspaper articles, would have been an important additional method of maximising the likelihood of the contents of the Claim Form coming to the attention of the Persons Unknown Defendants. But on their own, those are not sufficient.

23. I reject the argument that the Persons Unknown would, by a process of discussion in their communities and general experience, become aware of the proceedings and the contents of the Claim Form. General awareness of proceedings is not to be equated with proper service of the Claim Form on a Defendant…
Nicklin J then addressed the consequences of this failure to validate the previous methods of service (at para 24):

The consequence of the failure of the application under CPR 6.15(2) is pretty stark. The failure to serve the Defendants in this case means that the Interim and Final orders were made in this case without jurisdiction over any Defendant. The period of validity of the original Claim Form has long since expired: CPR 7.5. For the last three years, therefore, an injunction has been posted at up to 130 sites, directed at Persons Unknown, prohibiting certain conduct, on pain of committal for breach, when jurisdiction had not been established over any individual Defendant because of the failure validly to serve the Claim Form.

Significantly, before the hearing on 2 October 2020, Nicklin J had asked the parties for submissions on the following question:

Is a public authority that has obtained an injunction against Persons Unknown for a number of years under a duty to apply to the court for reconsideration of whether the terms of the injunction remain appropriate if there has, to the knowledge of the public authority, been a change in the law that casts doubt on whether the injunction ought to continue to apply in the terms in which it was originally granted?

Having heard submissions from both sides, Nicklin J concluded on this point as follows (at para 32):

…I consider that there is a duty on a party, such as the Claimant in this case who (i) has obtained an injunction against Persons Unknown ex parte, and (ii) is aware of a material change of circumstances, including for these purposes a change in the law, which gives rise to a real prospect that the court would amend or discharge the injunction, to restore the case within a reasonable period to the court for reconsideration. Although there are many reasons why this duty should apply particularly to a public authority, it does not appear to me that the duty is limited to public authorities.

In refusing Enfield’s application for a fresh interim injunction, Nicklin J stated:

42. The point can be demonstrated in this way. Assume that the Court were to make a final order in the terms sought by the Claimant against Persons Unknown. It would not provide any real protection to the Claimant because, in all probability, the Claimant would not be able to demonstrate whether any individual person had become a defendant to the claim. If no one can be identified as a defendant, the final order binds no-one. Canada Goose establishes that final injunctions against “Persons Unknown” do not bind newcomers. The consequence is that a hypothetical fly tipper who turned up at any of the ninety-six sites in respect of which the Court had made the final order would not actually be restrained by the injunction: s/he is not bound as an original defendant to the claim and s/he is not bound as a newcomer.

43. The result would be most unsatisfactory: barring some unusual development in the case, any interim injunction the Court granted would be more effective and more extensive in its terms than any final order the court could grant. As there is unlikely to be much by way of development between the grant of the interim and final order in this case, this raises the question as to whether the court ought to grant any interim relief at all. This arises because, unlike Canada Goose, at the date of grant of any interim injunction, no people exist in the category of Persons Unknown.

44. In terms of practical reality, the only way that the London Borough of Enfield could achieve what it seeks out to do, is to have a rolling programme of applications for interim orders.

Nicklin J adjourned Enfield’s injunction application to a final hearing. Then, on 16 October 2020, Nicklin J made an order that, effectively, joined all the other 37 local authorities which had been granted wide injunction orders (which were still extant) to the action and gave detailed directions requiring them to complete a questionnaire and make any relevant applications for withdrawal, discharge, or variation of their injunctions prior to a case management hearing on 17 December 2020.

Subsequent to this order several local authorities applied for and were granted discharge of the wide injunctions they had previously obtained. In several cases the original orders were set aside due to failures of service and other procedural issues.

By the time of the 17 December 2020 hearing 16 local authorities had indicated that they wished to pursue their attempts to obtain or maintain wide injunctions. At the hearing LGT, Friends, Families and Travellers (FFT) and the National Federation of Gypsy Liaison Groups (NFGLG) were given permission to intervene. Nicklin J then directed that a hearing on 27 and 28 January 2021 address a number issues of principle, including: the question of identification of ‘persons unknown’; and the question of whether ‘newcomers’ can be bound by a final order. At that hearing the interveners will  argue that Canada Goose applies to wide injunctions against Gypsies and Travellers. If that argument is successful then we hope this case may spell the death knell for wide injunctions.

How then should local authorities address unauthorised camping? The answer is as simple as it has always been, by the  proper provision of adequate permanent and transit sites Problems such as fly tipping and deposit of waste should be dealt with separately.

Chris Johnson of CLP
2 January 2021

Note 1: LGT, FFT and NFGLG have instructed CLP in this matter. Their Counsel are Marc Willers QC, Tessa Buchanan and Owen Greenhall  all of Garden Court Chambers.
Note 2: The 16 so called ‘Cohort Claimants’ who are still involved in this case are listed in the Schedule below.


Number (Schedule to Court Order dated 1.12.2020) Claimant(s) Defendants Case No.
1. London Borough of Barking and Dagenham Tommy Stokes, 63 others, and Persons Unknown QB-2017-006899 (HQ17X00849)
4. London Borough of Ealing Persons Unknown QB-2019-001696
6. London Borough of Havering William Stokes, 104 others, and Persons Unknown QB-2019-002737
7. London Borough of Hillingdon Persons Unknown QB-2019-001138
8. London Borough of Hounslow Persons Unknown QB-2019-002113
11. London Borough of Redbridge Martin Stokes, 99 others, and Persons Unknown QB-2018-003983 (HQ18X01522)
12. London Borough of Richmond-upon-Thames Persons Unknown QB-2019-000777
16. (1) Basingstoke and Deane Borough Council

(2) Hampshire County Council

Henry Loveridge & 115 others and Persons Unknown QB-2018-003748 (HQ18X02304)
26. (1) Nuneaton and Bedworth Borough Council

(2) Warwickshire County Council

Thomas Corcoran & 52 others and Persons Unknown QB-2019-000616
27. Reigate and Banstead Borough Council Persons Unknown QB-2019-002297
28. Rochdale Metropolitan Borough Council Shane Heron, 89 others, and Persons Unknown QB-2017-005202 (HQ17X04668)
33. Test Valley Borough Council Albert Bower, 88 others, and Persons Unknown QB-2020-002112
34. Thurrock Council Martin Stokes, 106 others, and Persons Unknown QB-2019-002738
35. Walsall Metropolitan Borough Council Brenda Bridges, 17 others, and Persons Unknown QB-2020-003850 (formerly Walsall County Court C00WJ967)
36. Wolverhampton City Council Persons Unknown QB-2020-003838 (formerly Birmingham District Registry E90BM139)
38. London Borough of Enfield Persons Unknown QB-2020-003471