‘Newcomer’ injunctions and the UK Supreme Court

Introduction

The recent UK Supreme Court (ÚKSC’) judgment in Wolverhampton City Council v London Gypsies explores the courts’ ability to grant ‘newcomer’ injunctions and the conditions to be satisfied before they can be granted.

The case concerned applications for injunctions by local authorities to prevent unauthorized encampments by Gypsies and Travellers.

The local authorities relied on a range of statutory provisions as well as common law causes of action such as trespass to land.

The claims were either brought against ‘persons unknown’ or against unnamed defendants identified by reference to future activities which the claimants sought to prevent.

Service of the claim was usually effected by fixing a copy of the claim in a prominent location at the relevant site.

The appeal by London Gypsies and Travellers was ‘concerned with matters of legal principle, rather than with whether it was or was not appropriate for injunctions to be granted in particular circumstances’ ([5]).

The idea of a ‘newcomer’ injunction?

A newcomer injunction ‘purports to restrain the conduct of persons against whom there is no existing cause of action at the time when the order is granted; it is addressed to persons who may not at the time have formed any intention to act in a manner prohibited, let alone threatened to take or taken any step towards doing so’ ([43]).

The judgment includes a list of the distinguishing features of the newcomer injunction ([143]).

Why newcomer injunctions?

The UKSC pointed out that newcomer injunctions could be the only practical solution in certain circumstances:

‘where claimants face the prospect of continuing unlawful disruption of their activities by groups of individuals whose composition changes from time to time, then it seems that the only practical means of obtaining the relief required to vindicate their legal rights would be for them to adopt a rolling programme of applications for interim orders resulting in litigation without end.’ ([138])

But, ‘there is no overriding reason why the courts cannot devise procedures which enable injunctions to be granted which prohibit unidentified persons from behaving unlawfully, and which enable such persons subsequently to become parties to the proceedings and to seek to have the injunctions varied or discharged’ ([138]).

What kind of injunction is it?

The newcomer injunction is ‘neither interim nor final’ ([139]).

It is ‘sought for the medium to long-term effect even if time-limited’ ([143]).

The newcomer injunction ‘is a wholly new type of injunction with no very closely related ancestors from which it might be described as evolutionary offspring’ ([144]).

The equitable basis for the newcomer injunction

Equity’s ability to grant this type of injunction is based on ‘the deep-rooted trigger for the intervention of equity where it perceives the available common-law remedies are inadequate to protect or enforce the claimant’s rights’ ([150]).

Its availability ‘critically depends on damages being an inadequate remedy for the breach’ ([150]).

When can they be awarded?

They can only be awarded where:

‘(i) There is a compelling need, sufficiently demonstrated by the evidence, for the protection of civil rights (or, as the case may be, the enforcement of planning control, the prevention of anti-social behaviour, or such other statutory objective as may be relied upon) in the locality which is not adequately met by any other measures available to the applicant local authorities (including the making of byelaws).

(ii) There is procedural protection for the rights (including Convention rights) of the affected newcomers, sufficient to overcome the strong prima facie objection of subjecting them to a without notice injunction otherwise than as an emergency measure to hold the ring. This will need to include an obligation to take all reasonable steps to draw the application and any order made to the attention of all those likely to be affected by it …. ; and the most generous provision for liberty (ie permission) to apply to have the injunction varied or set aside, and on terms that the grant of the injunction in the meantime does not foreclose any objection of law, practice, justice or convenience which the newcomer so applying might wish to raise.

(iii) Applicant local authorities can be seen and trusted to comply with the most stringent form of disclosure duty on making an application, so as both to research for and then present to the court everything that might have been said by the targeted newcomers against the grant of injunctive relief.

(iv) The injunctions are constrained by both territorial and temporal limitations so as to ensure, as far as practicable, that they neither outflank nor outlast the compelling circumstances relied upon.

(v) It is, on the particular facts, just and convenient that such an injunction be granted ….’

([167] and [186]).

Michael Lower

Tags: Michael Lower, Newcomer injunctions