Identification is key: High Court decision on local authority claims for injunctions against ‘persons unknown’

On the central issue, the court held, inter alia, that:

• final orders brought against persons unknown cannot bind newcomers. In the period between the grant of an interim order and subsequent trial, a claimant must identify either by name or other method the person against whom the final injunction is sought. A claimant cannot have an injunction against someone who is anonymous and cannot be identified; and,
• injunctions of the type sought in these cases – “Traveller Injunctions” – do not fall into the exceptional category where a contra mundum order can be made.

Sarah Salmon  acted for the London Borough of Hounslow in the High Court led by Ranjit Bhose QC.

The importance of the decision

In these claims, a number of local authorities sought injunctive relief on statutory grounds under section 222 Local Government Act 1972, section 187B Town and Country Planning Act 1990, section 130 Highways Act 1980 and section 1 Anti-social Behaviour, Crime and Policing Act 2014 against, inter alia, persons unknown.

Although the decision focuses on the tensions and impact on Gypsies and Travellers where a local authority applies for an injunction to prevent, inter alia, unlawful encampments and associated behaviour, it is likely to have much wider application as local authorities have also used the same statutory provisions to seek injunctions against ‘persons unknown’ to restrain raves and car cruising (among other things).

What issues was the High Court considering?

In December 2020, the High Court set out issues of principle it was to consider over 27 and 28 January 2021.

• Whether the court has the power – either generally under CPR 3.1(7) or otherwise, or specifically having regard to the particular terms of the relevant order – to case manage the proceedings and/or to vary or discharge injunctions that have previously been granted by final order.
• Whether the court has jurisdiction, and/or whether it is correct in principle, generally or in any relevant category of claim, to grant a claimant local authority final injunctive relief either against “persons unknown” who are not, by the date of the hearing of the application for a final injunction, persons whom the law regards as parties to the proceedings, and/or on a contra mundum basis.
• If there is no jurisdiction to grant such final injunctive relief in all or any of the cases identified above, in what circumstances (if any) should the court be prepared to grant interim injunctive relief against “persons unknown” defendants in such a claim, in a form in which final relief would not be granted?

Mr Justice Nicklin’s decision

Nicklin J, in a 129-page judgment, has found against the local authorities (“the Cohort”) on all issues of principle. The key takeaways from the judgment are as follows.

• Since the Supreme Court decision in Cameron v Liverpool Victoria Insurance in February 2019, the legal landscape for person unknown proceedings has changed. Since that decision there have been a number of higher court cases grappling with the issues that arise in the Cohort claims. These include the cases of the Bromley LBC v Persons Unknown [2020] PTSR 1043 and Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2801.
• Where a party who had (i) obtained an injunction against “persons unknown” ex parte, and (ii) become 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, was under a duty to restore the case within a reasonable period to the court for reconsideration: Enfield LBC v Persons Unknown [2020] EWHC 2717 (QB) at [32].
• Persons unknown injunctions are not available under Part 1, Anti-social Behaviour, Crime and Policing Act 2014. Part 1 of the Act (and the relevant provisions of the CPR) envisages a claim being made against an individual identified respondent and an injunction being used as part of targeted measures against anti-social behaviour committed by that respondent.

Issue 1 – jurisdiction over final orders (see paras. [127]-[148] of the judgment)

• Final injunctions against persons unknown do not fall within the orthodox position where a final judgment is given in conventional civil litigation between identifiable parties.
• The final injunctions that had been granted within the Cohort claims included wording such as “liberty to apply” and had been granted “until further order”.
• The court has jurisdiction over these “final” injunctions because their terms (a) expressly provide for the continuing jurisdiction of the court; and, in any event (b) apply to “newcomers” who were not parties to the proceedings when the relevant order was granted.
• It is a fundamental requirement of justice that where an injunction (whether interim or final) had been granted that has the potential to bind people who have not had the opportunity to be heard before the order was granted that the court retains jurisdiction to set aside or vary the order whether on application or on its own motion.

Issue 2 – final orders against Newcomers and contra mundum orders (see paras. [149]-[238] of the judgment)

• Traveller Injunctions are subject to the fundamental rules of civil litigation including the principle that the court only has jurisdiction over trial defendants where the claim form has been served on such defendants (whether personally or by way of alternative service).
• Final orders cannot bind Newcomers and in the period between the grant of any interim order and subsequent trial – which Nicklin J indicated should happen quickly – the claimant must identify either by name or other method (for example a photograph) the person against whom a final injunction is sought.
• A claimant cannot have an injunction against someone who is anonymous and cannot be identified.
• Section 37, Senior Courts Act 1981 confers jurisdiction on the court to grant contra mundum injunction orders.
• The circumstances in which the court will exercise such jurisdiction, however, is limited and ultimately will only be exercised where the court is compelled to act to, for example, protect an engaged Convention right.
• Traveller injunctions do not fall into the exceptional category of cases where the court could grant a contra mundum

Issue 3 – the ‘conundrum’ of interim relief (see paras. [242]-[243] of the judgment)

• There is no such conundrum.
• A court will not make an interim injunction against persons unknown unless it is satisfied that there exist people who have not been identified but are capable of being identified and served with proceedings. Service would include alternative service if such service can be reasonably expected to bring the proceedings to the attention of Persons Unknown.
• If a claimant cannot serve the claim form, there will be no civil claim in which to grant or maintain an injunction. The claimant will not have established jurisdiction over the Person(s) Unknown.
• Interim injunctions will only be granted where there is a sufficiently real and imminent risk of a tort being committed.

Next steps/outcome

• Nicklin J has discharged the final injunctions obtained by some local authorities against Persons Unknown. This is subject to providing those local authorities with a short period of time to identify any Persons Unknown they say should be bound by the final order.
• Where local authorities have interim orders, they have been given seven days to indicate whether they wish to discontinue the proceedings or they are opting to pursue.
• The Judge is also minded to discharge the powers of arrest that has been attached to the injunctions subject to hearing submissions.
• At paragraph [248] of the judgment, Nicklin J sets out the safeguards to which claims against persons unknown should be subject.

Background to the London Borough of Hounslow’s involvement

Between 1 May 2018 and 10 June 2019, London Borough of Hounslow, its officers and the police had to deal with 40 incursions onto and occupation of its land. Such unlawful occupation of land often involved a large number of vehicles and was accompanied by fly-tipping and the depositing of waste (including commercial building waste).

It brought a claim pursuant to statutory powers conferred by section 222 Local Government Act 1972 and section 187B Town and Country Planning Act 1990. Hounslow’s position was, in short, that it had brought the claim to enforce public rights:

• to restrain what would anyway be criminal conduct and public nuisance, and
• to prevent unlawful actions which materially interfere with the rights and privileges of members of the public to access and enjoy publicly-owned open spaces.