Can an injunction protect land against people whose identity nobody can yet know? A series of cases about unauthorised encampments raised that question. Someone might arrive long after the order was made, obey it immediately on hearing about it, and never have had a chance to tell the court why it should not have been granted.
The problem
Between 2015 and 2020, 38 local authorities or groups of authorities sought injunctions against unidentified people, broadly prohibiting unauthorised encampments in their areas or on specified land. Future campers could not generally be named in advance, so the defendants were described as “persons unknown”. Sometimes that was the whole description. In other claims the description referred to the conduct to be stopped, such as forming an unauthorised encampment or occupying listed sites for residential purposes.
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The authorities relied on planning enforcement powers or on civil wrongs such as trespass. The orders varied widely. Some were time-limited and others had no end date. Many had been made without notice.
The courts below
After reviewing the orders, Nicklin J held that interim relief against persons unknown was available but that a final order could bind only people who had been identified and given an opportunity to contest it. He discharged the final injunctions.
The Court of Appeal, in a judgment of Sir Geoffrey Vos MR with which Lewison and Elisabeth Laing LJJ agreed, held that he was wrong. A final injunction could prevent people who were unknown and unidentified when the order was made from occupying and trespassing on land. That conclusion rested principally on South Cambridgeshire District Council v Gammell, where a person was treated as becoming a defendant by doing an act within the description in the order.
Why the Gammell approach was rejected
Lord Reed, Lord Briggs and Lord Kitchin, with whom Lord Hodge and Lord Lloyd-Jones agreed, accepted that newcomers are not parties when the injunction is granted. They may not yet have formed any intention to camp on the land, so the claimant may have no existing cause of action against them.
The Court rejected the idea that a newcomer becomes a party, and becomes bound, only by breaking the injunction. That approach leaves out the person who learns of the order and obeys it, and it produces the paradox that the order binds a person only because that person is already in breach. Injunctions are granted on the assumption that they will be obeyed. Fairness should be judged by reference to the person who complies, not the person later dealt with for contempt.
The difference between interim and final injunctions was not decisive. These cases rarely reach trial, and an order may remain in force for a long time even if expressed as interim or until further order. Against a newcomer, the injunction is in substance always made without notice.
The power to grant the order
Section 37 of the Senior Courts Act 1981 confirms the High Court’s power to grant an injunction where it appears just and convenient. The power is equitable. It is not confined to categories of order already recognised, and equity may develop a new remedy where existing remedies are inadequate, looking to substance rather than form.
An ordinary possession order does not solve quite the same problem. Once executed, it does not prohibit later entry. The authorities said that eviction and injunctions against named individuals could not address groups moving between sites or people arriving later.
When an order may be justified
The Court held that this novel order is likely to be justified only if five conditions are met. The evidence must show a compelling need to protect civil rights, or to enforce planning control, prevent anti-social behaviour or meet another statutory objective, which other available measures do not adequately meet. There must be procedural protection for the newcomers’ rights, including Convention rights, sufficient to meet the objection to a without-notice order that is not a short emergency measure. The applicant must make the fullest disclosure, researching and presenting what the targeted newcomers might have said against the order. The injunction must have territorial and temporal limits so that it does not outflank or outlast the circumstances relied on. And it must be just and convenient. It might not be just, for example, to restrain short-term transit camping if the authority has failed to provide authorised sites which it has power or a duty to provide.
The Court rejected the argument that an order of this kind improperly made local law. The existence of other powers, such as the power to make byelaws, mattered when deciding whether an injunction was necessary in a particular area.
An individual assessment of every potential Traveller’s article 8 circumstances is not required before the order can be made. A person affected can raise their own circumstances under liberty to apply. Evidence about one group may justify fear of wider repetition, but a borough-wide injunction based only on disorder by a single group at a single site would probably fail.
Safeguards and context
The applicant must prove a strong probability of a tort, breach of planning control or other public-law wrong, causing real harm, and a threat that is real and imminent. Disclosure continues after the order. People who can be identified must be identified; an order against persons unknown is permissible only where more precise identification is impossible. Prohibited acts must be stated in everyday language, must match the threatened unlawfulness, and must go no further than necessary.
The Court doubted whether a Gypsy or Traveller injunction against persons unknown, including newcomers, could ever justifiably cover a whole borough or last for significantly more than a year. Such orders should be reviewed and should end after no more than a year unless renewed. Before applying, the authority must take reasonable steps to alert people likely to be affected, or with a genuine interest, in time for focused submissions. Afterwards it must actively draw the order, its consequences and the right to apply to vary or discharge it to the attention of those affected. Liberty to apply should allow a challenge on any ground available when the order was made, without a change of circumstances.
In assessing proportionality the court must consider the circumstances of Gypsies and Travellers, including the importance of a nomadic way of life and the availability of authorised sites. The detailed guidance here reflected encampment cases. The Court did not prescribe identical safeguards for other settings such as protests.
Verdict: The Supreme Court unanimously dismissed the appeal. Courts can grant interim or final injunctions against newcomers who have notice of the order. Whether any individual encampment order met the requirements was left for the court dealing with it.
Source: Wolverhampton City Council and others v London Gypsies and Travellers and others [2023] UKSC 47
