LB Barking & Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13, 13 January 2022.

Over the last 6 years, some 38 councils in England have obtained what have become known as ‘borough-wide’ injunctions prohibiting ‘persons unknown’ from camping on numerous sites and large swathes of public land within the boundaries of each local authority. Such injunctions have a disproportionate effect on nomadic Gypsies and Travellers, particularly given the long-standing shortage of lawful sites for them to camp on.

The lawfulness of borough-wide injunctions affecting Gypsies and Travellers was first considered, at an appellate level, in the case of Bromley London Borough Council v Persons Unknown and others [2020] EWCA Civ 12. The Court of Appeal dismissed an appeal by the local authority against the decision of a Deputy Judge in the High Court to refuse its application for a borough-wide injunction which would have restrained Gypsies and Travellers from camping on 171 pieces of land in Bromley. The Court of Appeal also gave general guidance about when such injunctions should be granted. See our report here: https://www.communitylawpartnership.co.uk/news/the-enshrined-right-to-travel-the-bromley-case

Shortly after the Court of Appeal had given judgment in the Bromley case, it gave judgment in the separate case of Canada Goose v Person Unknown [2020] 1 WLR 2802. This case concerned an injunction sought by a retail clothing company against protesters. The Court of Appeal considered the availability of final injunctions against persons unknown. Having considered the judgment of the Supreme Court in Cameron v Liverpool Victoria Insurance [2019] 1 WLR 1471, in which Lord Sumption reiterated the “fundamental principle of justice 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” (para 17), the Court of Appeal held (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.

Following these decisions, the London Borough of Enfield applied to ‘extend’ the final injunction it had previously obtained in the High Court. The case came before Nicklin J, who made directions bringing all of the 38 borough-wide injunction cases back before the Court for review in the light of the Court of Appeal’s decisions in Bromley and Canada Goose. By the date of the consolidated hearing in January 2021, Nicklin J had discharged many of the existing injunctions with the result that the number of claimants had been reduced to 13. In addition three Traveller organisations had formally intervened in the matter: London Gypsies and Travellers (LGT); Friends, Families and Travellers (FFT); and the National Federation of Gypsy Liaison Groups (NFGLG). The Attorney General had also appointed an Advocate to assist the Court.

Nicklin J handed down his judgment on 12 May 2021 – see London Borough of Barking and Dagenham and Others v Persons Unknown and Others [2021] EWHC 1201 (QB). Applying the principles laid down in Canada Goose, Nicklin J concluded that final injunction orders could not bind non-parties i.e. ‘newcomers.’ For our report on this case see: https://www.communitylawpartnership.co.uk/news/press-release-is-this-the-end-of-the-wide-injunction

12 local authorities appealed that decision to the Court of Appeal. The Court of Appeal allowed the appeal, having concluded that the Court of Appeal in Canada Goose had misunderstood the decision of the Supreme Court in the case of Cameron as well as previous Court of Appeal judgments involving persons unknown injunctions.

Sir Geoffrey Vos, Master of the Rolls, giving the leading judgment stated (at para 7):

I have concluded that: (i) the judge was wrong to hold that the court cannot grant final injunctions that prevent persons, who are unknown and unidentified at the date of the order, from occupying and trespassing on land, and (ii) the procedure adopted by the judge was unorthodox. It was unusual insofar as it sought to call in final orders of the court for revision in the light of subsequent legal developments, but has nonetheless enabled a comprehensive review of the law applicable in an important field. Since most of the orders provided for review and nobody objected to the process at the time, there is now no need for further action. (iii) Section 37 of the Senior Courts Act 1981 (section 37) and section 187B [of the Town and Country Planning Act 1990] impose the same procedural limitations on applications for injunctions of this kind. (iv) Whilst it is the court’s proper function to give procedural guidelines, the court cannot and should not limit in advance the types of injunction that may in future cases be held appropriate to make under section 37 against the world.

The Court of Appeal thus concluded that final injunction orders could and did bind newcomers.

The Court also expressed some doubt over the comments made in Bromley that there was an “inescapable tension” between the Article 8 rights of the Gypsy and Traveller community and the common law of trespass and that the cases made plain that Gypsies and Travellers have an “enshrined freedom” to travel. However these comments were not part of the decision and it should be emphasised that the guidance in the Bromley case remains good law.

It is important to also remember that, in order for the court to have jurisdiction over any defendants, the claim form must have been served, whether personally or pursuant to an order for alternative service (or service must have been dispensed with by the Court). Any order for alternative service must be such as would reasonably be expected to bring the proceedings to the unnamed defendants’ attention.

CLP acted for LGT, FFT and NFGLG at high court and Court of Appeal level. Counsel were Marc Willers QC, Tessa Buchanan and Owen Greenhall of Garden Court Chambers. LGT, FFT and DGLG ( in place of NFGLG) are seeking permission to appeal to the Supreme Court.
For the judgment see here: https://www.bailii.org/ew/cases/EWCA/Civ/2022/13.html